I Heart FTC: Proposed New York Bill Would Continue Biden FTC’s Antitrust Vision and Policies

After the FTC issued a replacement of the 2016 Antitrust Guidance for Human Resource Professionals on January 16, 2025, Commissioner – now Chair – Andrew N. Ferguson, joined by Commissioner Melissa Holyoak, punctuated his dissent by stating, “[t]he Biden-Harris FTC has no future.” But some New York State Senators disagree and are attempting to make those policies New York law. Unlike many states, New York antitrust is not necessarily designed to be interpreted consistently with federal law.

A New York state bill (“SB 335”) is taking most of its cues from the Biden-Harris-Khan playbook. But first, let’s go back in time: on July 9, 2021 President Biden signed an executive order (“EO”) on “Promoting Competition in the American Economy.” (We wrote about it here). Observers commented on the breathtaking 72 initiatives tackling competition problems across the government. Biden asked over a dozen federal agencies “can we go after labor markets, health care, agriculture, tech, as well as banking and consumer finance?” The FTC responded with a resounding, “yes we Khan.” Within the first year after Biden signed the EO, the FTC:

• Initiated an updating of the FTC/DOJ Merger Guidelines, 
• Cracked down on non-compete provisions and private equity roll-ups, 
• Launched initiatives to examine competition and antitrust enforcement in the pharmaceutical industry and U.S. labor markets.
• Took two big swings at merger control:
  • First, by reinstituting a practice of routinely restricting future acquisitions for firms that pursue anticompetitive mergers; and 
  • Second, by taking 26 enforcements actions against alleged illegal anticompetitive mergers in a range of sectors, including in the defense, computer chip, outdoor sporting goods, energy pipeline, and health care industries

Lawmakers in New York, where the state’s antitrust laws are over a century old, are advancing the modernizing bill with those FTC actions (and more) in mind. First, SB 335 seeks to introduce the “abuse of market dominance” standard (typically a European concept), which makes it unlawful for a company to unilaterally use its market power to restrict competition. Additionally, the bill targets corporate consolidation and strengthens protections for workers and small businesses, codifying the principals of the Khan FTC into state law. Finally, the bill would establish “the most comprehensive merger notification program from a U.S. state,” which includes analyzing a transaction’s impacts on labor markets.

Notably, the bill seeks to codify the per se illegality of exclusive dealing, non-compete agreements, and tying arrangements. The bill also assigns per se liability to any restraint that the attorney general determines, through rulemaking, either poses a substantial risk of harming competition or serves no legitimate business purpose that cannot be achieved in some less restrictive way. It is unclear whether these provisions, if passed, would be vulnerable on constitutional grounds, for example as an unconstitutional delegation of a legislative function to an executive official.

Under SB 335, a criminal violation of the law is a class D felony (it was class E before); the fine for a natural person is increased from $100,000 to $1M, and the fine for a corporation is increased from $1M to $100M. The bill also increases the statute of limitation for bringing an action under the legislation from three to five years. 

The bill passed the New York Senate last year with support from the Teamsters Union, but the Economic Development Committee chair in the New York Assembly has stated that the bill must be narrowed to avoid driving business out of the state. The pressing New York state budget deadline is April 1, so any committee action before then is unlikely.

We will continue to monitor, and provide updates on, developments regarding this legislation. Watch this space. If you have a question about SB 335 or antitrust issues generally, please contact one of the individuals above or your regular Mintz attorney.

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