Bill Text: MI HB5752 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Trade; antitrust; Michigan antitrust reform act; expand to include price discrimination. Amends sec. 9 of 1984 PA 274 (MCL 445.779) by adding sec. 3a.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-07-18 - Printed Bill Filed 06/15/2012 [HB5752 Detail]

Download: Michigan-2011-HB5752-Introduced.html

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HOUSE BILL No. 5752

 

June 14, 2012, Introduced by Rep. Olumba and referred to the Committee on Regulatory Reform.

 

     A bill to amend 1984 PA 274, entitled

 

"Michigan antitrust reform act,"

 

by amending section 9 (MCL 445.779) and by adding section 3a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 3a. (1) A person engaged in trade or commerce, either

 

directly or indirectly, shall not discriminate in price when

 

selling commodities of like grade and quality to different

 

purchasers if the sales transactions meet all of the following:

 

     (a) Either or any of the purchases involved in the

 

discrimination are made in trade or commerce.

 

     (b) The commodities are sold for use, consumption, or resale

 

within this state.

 

     (c) The effect of the discrimination may be substantially to

 

lessen competition or tend to create a monopoly in any line of

 

trade or commerce, or to injure, destroy, or prevent competition

 

with a person that either grants or knowingly receives the benefit

 

of the discrimination, or with customers of either of them, and for

 

the purpose of destroying competition or eliminating a competitor.

 

     (2) A person engaged in trade or commerce shall not be a party

 

to, or assist in, a sale or contract to sell that, to the person's

 

knowledge, discriminates against competitors of the purchaser by

 

doing any of the following:

 

     (a) Granting a discount, rebate, allowance, or advertising

 

service charge to the purchaser over and above a discount, rebate,

 

allowance, or advertising service charge available at the time of

 

the sale to competitors concerning a sale of goods of like grade,

 

quality, and quantity.

 

     (b) Selling, or contracting to sell, goods in any part of this

 

state at a lower price than the price charged by that person in

 

another part of this state for the purpose of destroying or

 

eliminating a competitor.

 

     (c) Selling, or contracting to sell, goods at unreasonably low

 

prices for the purpose of destroying competition or eliminating a

 

competitor.

 

     (3) This section does not prohibit any of the following:

 

     (a) Price differentials that make only a reasonable allowance

 

for differing competitive conditions or for differences in the cost

 

of manufacture, sale, or delivery resulting from the differing

 

methods or quantities in which the commodities are sold or

 

delivered.

 

     (b) Persons engaged in selling goods, wares, or merchandise in

 

trade or commerce from selecting their own customers in bona fide

 

transactions and not in restraint of trade.

 

     (c) Price changes from time to time made in response to

 

changing conditions that affect the market for or the marketability

 

of the goods concerned, including, but not limited to, any of the

 

following:

 

     (i) Actual or imminent deterioration of perishable goods.

 

     (ii) Obsolescence of seasonal goods.

 

     (iii) A distress sale of goods under court process.

 

     (iv) Sales of goods made in good faith in discontinuing

 

business in the goods concerned.

 

     (v) Sales of goods made in a bona fide attempt to rehabilitate

 

a business in distress.

 

     (d) Temporary retail sales or special advertised offerings

 

undertaken in a good-faith effort to foster competition or increase

 

sales or customer volume, and not undertaken for the purpose or

 

with the effect of destroying competition, eliminating a

 

competitor, or creating a monopoly.

 

     (e) A person engaged in the business of selling commodities at

 

retail through 2 or more retail outlets located in this state from

 

selling the same commodities at a lower price in 1 location than

 

that charged by that person at another location, unless such a

 

differential is undertaken for the specific purpose of eliminating

 

a competitor.

 

     (4) In an action for a violation of subsection (1) or (2), if

 

a person makes a prima facie case that there was discrimination in

 

price or services or facilities furnished and that the person was

 

injured by the effects of that discrimination, the burden of

 

rebutting the prima facie case by showing justification for the

 

price differential is on the person charged with the violation, and

 

unless justification is affirmatively shown, the court may issue an

 

order terminating the discrimination. However, a person charged

 

with a violation of subsection (1) or (2) may rebut the prima facie

 

case made by a purchaser by showing that the lower price to a

 

purchaser was made in good faith to meet the overall pricing of a

 

competitor or by proof of any of the elements of subsection (3).

 

     Sec. 9. (1) A person who engages in any violation of section 2

 

or 3 that violates section 2, 3, or 3a with the intent to

 

accomplish a result prohibited by this act shall be is guilty of a

 

misdemeanor , punishable by imprisonment of not more than 2 years

 

or a fine of not more than $10,000.00, or both, if the person is an

 

individual, or a fine of not more than $1,000,000.00 if a person

 

other than is not an individual. A

 

     (2) The attorney general or a prosecuting attorney shall not

 

bring a criminal prosecution shall not be brought under this

 

section if a prior criminal prosecution has been initiated under

 

the Sherman act, 15 USC 1 to 7, or the Robinson-Patman act, 15 USC

 

13, 13a, 13b, and 21a, arising out of the same transactions or

 

occurrences.