Bill Text: CA AB853 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Retail grocery stores and retail drug stores: acquisition: notice to Attorney General.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-10-08 - Chaptered by Secretary of State - Chapter 457, Statutes of 2023. [AB853 Detail]
Download: California-2023-AB853-Amended.html
NOYES
SECTION 1. Section 2516.1 is added to the Labor Code , to read: 2516.1.
Bill Title: Retail grocery stores and retail drug stores: acquisition: notice to Attorney General.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-10-08 - Chaptered by Secretary of State - Chapter 457, Statutes of 2023. [AB853 Detail]
Download: California-2023-AB853-Amended.html
|
Amended
IN
Assembly
March 15, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 853
| Introduced by Assembly Member Maienschein |
February 14, 2023 |
An act to add Section 2516.1 to the Labor Code, Title 8.5 (commencing with Section 2250) to Part 4 of Division 3 of the Civil Code, relating to private employment. retail grocery stores and retail drug stores.
LEGISLATIVE COUNSEL'S DIGEST
AB 853, as amended, Maienschein.
Grocery workers. Retail grocery stores and retail drug stores: acquisition: notice to Attorney General.
Existing law, upon change in control of a grocery establishment, requires an incumbent grocery employer, within 15 days after the execution of the transfer document, to provide to the successor grocery employer a list of eligible grocery workers, as specified, and requires the successor grocery employer to maintain a preferential hiring list of eligible grocery workers, to hire from that list for 90 days after the grocery establishment is fully operational and open to the public under the successor grocery employer, and to retain each eligible grocery worker hired for at least 90 days after their commencement date, except as specified. Existing law exempts from those provisions grocery establishments that are located in geographic areas designated by the United States Department of Agriculture as a food desert if specified conditions apply.
establishes a transitional period of employment for eligible grocery workers, as specified.
The bill would prohibit a successor grocery store employer to cause a grocery establishment that is located in a geographic area designated as a food desert to cease being fully operational and open to the public until the establishment provides notice to the city council, city attorney, board of supervisors, county counsel, State Department of Public Health, and Attorney General 180 days before the establishment ceases to be fully operational and open to the public. The bill would require the notice to include, among other things, a written analysis and explanation, including data, on how residents living in the geographic area will be able, at a comparable cost, including transportation cost and time off work and childcare costs, to purchase food.
person from acquiring any voting securities or assets of a retail grocery firm or retail drug firm, as those terms are defined, unless specified written notice is given to the Attorney General at least 180 days before the acquisition is to become effective. The bill would specify information required to be included in the notice, including information required to assess the competitive effects of the proposed acquisition and to assess the economic and community impact of any planned divestiture or store closures. The bill would require the notice to be given under oath and affirmation. By expanding the scope of the crime of perjury, the bill would impose a state-mandated local program. The bill would authorize the Attorney General to adopt regulations to effectuate the bill’s provisions, and would exempt the adoption of those regulations from the Administrative Procedure Act. The bill would prohibit the Attorney General from making specified information public. The bill would make a violation of
the bill’s provisions subject to injunctive relief and other equitable remedies, and would entitle Attorney General to recover attorney’s fees and costs.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares that the increasing consolidation of chain retail grocery stores, which are primary points of food distribution throughout California, and chain retail pharmacies, which are primary points of medicine distribution throughout California, implicate the public health of Californians. These consolidations not only potentially affect the supply and affordability of food and medicine, they potentially affect the supply of experienced grocery retail workers with knowledge of proper sanitation and health regulations, and licensed pharmacists, pharmacy technicians, and pharmacists-in-charge, who are entrusted with supplying safe and accurate medications and dosages to ailing Californians. The Legislature further finds and declares that, for these vital public health and safety reasons, the increase in merger activity in the chain retail grocery and chain retail pharmacy sectors requires giving the Attorney General certain and specific tools to review these mergers.SEC. 2.
Title 8.5 (commencing with Section 2250) is added to Part 4 of Division 3 of the Civil Code, to read:TITLE 8.5. Retail Grocery Firms and Retail Drug Firms
2250.
No person shall acquire, directly or indirectly, any voting securities or assets of a retail grocery firm or retail drug firm unless both parties, or in the case of a tender offer, the acquiring party, gives written notice to the Attorney General in accordance with this title.2251.
For purposes of this title, the following definitions apply:(a) “Retail drug firm” means a person, as defined in Section 18 of the Labor Code, including a proprietorship, joint venture, corporate officer or executive, that has 300 or more employees globally and is identified as a retail business or establishment in the North American Industry Classification System within the retail trade category 45611.
(b) “Retail grocery firm” means a person, as defined in Section 18 of the Labor Code, including a proprietorship, joint venture, corporate officer or executive, that has 300 or more employees globally and is identified as a retail business or establishment in the North American Industry
Classification System within the retail trade category 44511 and 455211.
2252.
(a) The written notice to be filed with the Attorney General shall be made under oath or affirmation, and shall comply with the requirements of subdivision (c). The notice shall be given no less than 180 days before the acquisition is made effective.(b) The notice shall be required 180 days before the offer or agreement of the type described in subdivision (c). If any transaction requiring written notice pursuant to this subdivision commences before the effective date of this section, the written notice shall be given to the Attorney General within 30 days of the effective date unless that 30-day time period would cause the Attorney General not to be able to evaluate the transaction before the acquisition or merger, in which case the
Attorney General may request the information immediately. If any material change occurs in the facts set forth in the written notice filed with the Attorney General, an amendment setting forth the change and copies of all documents and other material relevant to the change shall be filed with the Attorney General within two business days after the person learns of the change.
(c) The notice shall contain all of the following information:
(1) (A) The name and address of each person by whom or on whose behalf the merger or other acquisition of control referred to in subdivision (b) is to be effected, hereinafter called the acquiring party, and a report of the nature of its business operations during the past five years or for a lesser period if the person and their predecessors have been in existence less than five years.
(B) An informative description of the business intended to be done by the person and the person’s subsidiaries.
(C) A list of all individuals who are or have been selected to become directors or executive officers or who perform or will perform functions appropriate to the positions.
(2) The source, nature, and amount of the consideration used or to be used in effecting the merger or other acquisition of control, a description of any transaction in which funds were or are to be obtained, including any pledge of the drug or grocery retail firm’s stock or the stock of any of its subsidiaries or controlling affiliates, and the identity of persons furnishing the consideration. If a source of the consideration is a loan made in the lender’s ordinary course of business, the identity of the lender shall remain confidential
upon request of the person filing the statement.
(3) Fully audited financial information as to the earnings and financial condition of each acquiring party for the preceding five fiscal years or for a lesser period if the acquiring party and its predecessors have been in existence for less than five years, and similar unaudited information as of a date not earlier than 90 days before the written notice.
(4) Any plans or proposals that an acquiring party may have to liquidate the retail grocery or retail drug firms, to sell its assets or merge or consolidate it with any person, or to make any other material change in its business or corporate structure or management.
(5) The information required to assess the competitive effects of the proposed acquisition, giving particular attention to the effects on the proposed
chain retail grocery store acquisition on consumers, including, but not limited to, consumer choice, food pricing, access to food, and food deserts, and factors affecting the supply of experienced grocery workers, including wages, benefits, and unemployment and chain retail pharmacy on patients, including, but not limited to, patient choice, medicine pricing, access to medications, and factors affecting the supply of licensed pharmacists, pharmacy technicians, and pharmacists-in-charge.
(6) Information required to assess the economic and community impact of any planned divestiture or store closures, including, but not limited to, the impact on food deserts, food supply, economic mobility, unemployment, and small businesses
2253.
(a) The Attorney General may adopt regulations to effectuate this title that are necessary or appropriate for the protection of workers, consumers, and the public interest.(b) The regulations may specify exemptions from the notice requirement for acquisitions that, by virtue of the size, business volume, or number of employees are unlikely to materially affect competitive markets in California.
(c) The regulations may authorize the Attorney General to request additional materials.
2254.
If the Attorney General determines that they cannot complete an evaluation of the competitive effects of the acquisition before the parties intend to consummate the acquisition, the Attorney General may seek an order from the superior court for the County of Sacramento temporarily staying or preliminarily enjoining the acquisition for such time as is reasonably necessary for the Attorney General to complete the analysis.2255.
(a) For acquisitions to which Section 18a of Title 15 of the United States Code applies, the Attorney General shall consider the extent to which information required to be submitted to the United States Department of Justice and the Federal Trade Commission may satisfy some or all of the need to carry out the applicable state laws. Any information that has been submitted to the Attorney General under provisions of federal law rendering them confidential shall be deemed to be privileged under California law.(b) The submitting party may designate information submitted pursuant to this title as privileged. If the Attorney General disputes any claim of privilege, the Attorney General may give notice to the submitting party of that fact and give
the submitting party, or other person interested in the claim of privilege, an opportunity to seek an order from a superior court for the County of Sacramento requiring the Attorney General not to make the designated information public. Except for information that the Attorney General agrees is privileged or the court so determines, the information shall be available to the public under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).
2256.
Regulations adopted by the Attorney General pursuant to this title are exempt from the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).2257.
Nothing in this section shall preclude the Attorney General or any person from bringing an action pursuant to this article or any other law to enjoin or seek divestiture of assets or ownership interests obtained in a completed acquisition.2258.
(a) The failure to provide written notice, amendment to written notice, or other material required to be provided pursuant to this title shall be a violation of this title.(b) In addition to any legal remedies the Attorney General may have, the Attorney General shall be entitled to injunctive relief and other equitable remedies a court deems appropriate for a violation of this title and shall be entitled to recover its attorney’s fees and costs incurred in remedying each violation.
SEC. 3.
The Legislature finds and declares that Section 2 of this act, which adds Sections 2255 to the Civil Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:(a) The provisions of this measure addressing the possible confidentiality of certain documents under federal law and state law are required to ensure that this measure and implementation of this measure do not violate federal law and existing state law.
(b) The interest in justifying confidentiality as described in this measure is the necessity to ensure the measure complies with federal law and is not in conflict with existing state law.
SEC. 4.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.(a)In the case of a change of control from a merger, a successor grocery employer shall not cause a grocery establishment that is located in a geographic area designated by United States Department of Agriculture as a food desert to cease being fully operational and open to the public until the establishment provides a written notice to the city council, city attorney, board of supervisors, county counsel, State Department of Public Health, and Attorney General 180 days before the establishment ceases to be fully operational and open to the public.
(b)The notice required by subdivision (a) shall include both of the following:
(1)A written analysis and explanation, including data, of how residents living in the geographic area designated by United States Department of Agriculture as a food desert will be able, at comparable cost, including transportation cost and time off work and childcare costs, to purchase food after the establishment ceases being fully operational and open to the public.
(2)A profit and loss statement for the establishment consistent with generally accepted accounting principles for the two years prior to the merger attested to by a responsible officer of the successor employer.
