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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : TRADE AND COMMERCE
Chapter : Chapter 416 Monopolies, Discriminations and Conspiracies
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Sections 416.011 to 416.161 may be known and shall be cited as
the "Missouri Antitrust Law". (L. 1974 S.B. 424)
Unless a different meaning is clearly indicated by the context,
for the purposes of sections 416.011 to 416.161:
(1) "Commodity" means any kind of real, personal or mixed property, but
does not include the labor of a human being;
(2) "Person" means any individual, corporation, firm, partnership,
incorporated or unincorporated association or any other legal or
commercial entity;
(3) "Service" means any kind of activity performed in whole or in part
for financial gain but does not include labor which is performed by
individuals as employees of others;
(4) "Trade or commerce" means any economic activity involving or relating
to any commodity or service. (L. 1974 S.B. 424)
1. Every contract, combination or conspiracy in restraint of
trade or commerce in this state is unlawful.
2. It is unlawful to monopolize, attempt to monopolize, or conspire to
monopolize trade or commerce in this state.
3. It is unlawful for any person* engaged in trade or commerce in this
state, in the course of such trade or commerce, to lease or make a sale
or contract for sale of any commodity, whether patented or unpatented,
for use, consumption, or resale within this state, or fix a price charged
therefor, or discount from, or rebate upon, such price, on the condition,
agreement, or understanding that the lessee or purchaser thereof shall
not use or deal in the commodities of a competitor or competitors of the
lessor or seller, where the effect of such lease, sale, or contract for
such sale or such condition, agreement, or understanding may be to
substantially lessen competition or tend to create a monopoly in any line
of trade or commerce in this state. (L. 1974 S.B. 424)
*Word "persons" appears in original rolls.
1. Nothing contained in the Missouri antitrust law shall be
construed to forbid the existence or operation of:
(1) Any labor organization instituted for the purpose of mutual help and
not conducted for profit, or of individual members thereof as to any
activities which are directed solely to labor objectives which activities
are lawful under the laws of either this state or the United States;
(2) Any agricultural or horticultural organization instituted for the
purpose of mutual help and not conducted for profit, or of individual
members thereof as to any activities which are directed solely to
activities of such organizations which activities are lawful under the
laws of either this state or the United States.
2. Nothing contained in the Missouri antitrust law shall be construed to
apply to activities or arrangements expressly approved or regulated by
any regulatory body or officer acting under statutory authority of this
state or of the United States.
3. Nothing contained in the Missouri antitrust laws shall be construed to
apply to or prohibit written territorial agreements dealing with the
distribution or sale of electrical energy entered into between rural
electrical cooperatives, electrical corporations and municipally owned
utilities, if such territorial agreements have been approved by the
public service commission pursuant to the provisions of chapter 394,
RSMo, or to apply to or prohibit written territorial agreements dealing
with the sale or distribution of water entered into between public water
supply districts, water corporations subject to public service commission
jurisdiction, and municipally owned utilities, if such territorial
agreements have been approved by the public service commission pursuant
to the provisions of section 247.172, RSMo. (L. 1974 S.B. 424, A.L. 1988
S.B. 689, A.L. 1989 H.B. 813, A.L. 1991 H.B. 299)
Effective 5-29-91
1. Any person who violates any of the provisions of subsection*
1 or 2 of section 416.031 is guilty of a misdemeanor and, upon conviction
thereof, shall be punished by a fine of up to fifty thousand dollars or
by imprisonment in the county jail for a term not to exceed one year, or
by both such punishments at the discretion of the court. The attorney
general shall not commence prosecutions under this section against any
defendant who, at the time, is a defendant with regard to any current
information or indictment filed by the United States for violation, or
alleged violation, of the Federal Antitrust Statutes involving
substantially the same subject matter.
2. The attorney general, with such assistance as he may require from the
appropriate county prosecuting attorney, shall investigate suspected
criminal violations of sections 416.011 to 416.161 and shall commence and
try all criminal prosecutions under sections 416.011 to 416.161.
Prosecutions under sections 416.011 to 416.161 may be commenced by
information or indictment. With regard to the investigation, commencement
and trial of such prosecutions, the attorney general shall have all the
powers and duties vested in him by law with respect to criminal
investigations and prosecutions generally. All reasonable and necessary
expenses incurred by a prosecuting attorney or his staff in assisting the
attorney general shall be reimbursed from appropriations made to the
attorney general.
3. Any person who is found to be in contempt of any court order issued to
enforce the provisions of section 416.031 arising out of any proceeding
brought by the attorney general shall forfeit and pay to the state a
civil penalty of not more than twenty thousand dollars. For the purposes
of this section, the circuit court issuing any such court order enforcing
the provisions of section 416.031 shall retain jurisdiction, and the
cause shall be continued, and in such cases the attorney general acting
in the name of the state may petition for recovery of civil penalties.
(L. 1974 S.B. 424)
*Word "subsections" appears in original rolls.
1. The several circuit courts of this state are invested with
jurisdiction to prevent and restrain violations of section 416.031.
2. It shall be the duty of the attorney general to enforce the provisions
of sections 416.011 to 416.161. It shall be the duty of the attorney
general to institute civil proceedings to prevent and restrain violations
of sections 416.011 to 416.161. The attorney general may employ special
counsel in suits to enforce the provisions of sections 416.011 to 416.161
or in actions on behalf of the state or in his representative capacity
under subsection 3 of this section in the federal courts brought under
federal statutes pertaining to antitrust, trade regulation, restraint of
trade or price fixing activities. The attorney general, at his
discretion, may direct the appropriate county prosecuting attorney of any
county in which any proceeding is instituted or brought by the state
under sections 416.011 to 416.161 or in which any investigation of a
violation of sections 416.011 to 416.161 is occurring to aid and assist
him in the conduct of such investigations and proceedings. All reasonable
and necessary expenses incurred by a county prosecuting attorney or his
staff in assisting the attorney general shall be reimbursed from
appropriations made to the attorney general.
3. The attorney general may represent, besides the state and any of its
political subdivisions or public agencies, all other political
subdivisions, school districts and municipalities within the state in
suits to enforce the provisions of sections 416.011 to 416.161 or in
actions brought in the federal courts under any federal statute
pertaining to antitrust, trade regulation, restraint of trade or price
fixing activities.
4. The attorney general is authorized to enter into consent judgments or
decrees with any party defendant in an action brought under sections
416.011 to 416.161. However, no such consent judgment or decree shall
become final until approved by the circuit court where filed or until a
period of sixty days has elapsed since the filing of the consent judgment
or decree whichever occurs first; provided, however, that no such
approval may be entered by the circuit court until the thirty-first day
after the filing of the consent judgment or decree.
5. A final judgment or decree rendered in any civil or criminal
proceeding brought by the state under sections 416.011 to 416.161 shall
be prima facie evidence against the defendant in any action or proceeding
brought by any other party under sections 416.011 to 416.161 against the
defendant as to all matters respecting which the judgment or decree would
be an estoppel between the parties thereto, provided that any such action
is maintained within one year of the date the judgment or* decree is
entered. This subsection does not apply to consent judgments or decrees
entered before the taking of any testimony in the case or to judgments or
decrees entered in actions brought in the state courts under section
416.121. (L. 1974 S.B. 424)
*Word "of" appears in original rolls.
1. In addition to all other remedies provided by sections
416.011 to 416.161, the circuit courts of this state are invested with
jurisdiction to grant such preliminary or permanent injunctive relief and
to issue such temporary restraining orders as necessary to prevent and
restrain violations of section 416.031.
2. In any civil action brought under sections 416.011 to 416.161, in
addition to granting such prohibitory injunctions and other restraints as
it deems expedient to deter the defendant from, and secure against, his
committing a future violation of sections 416.011 to 416.161, the court
may grant such mandatory relief as is reasonably necessary to restore or
preserve fair competition in the trade or commerce affected by the
violation. (L. 1974 S.B. 424)
1. There is created a revolving fund for the office of the
attorney general to be known as the "Antitrust Revolving Fund", which
shall consist of money transferred by the general assembly of the state
of Missouri from the general revenue fund to be credited to such fund,
and any money paid into the state treasury and required by law to be
credited to such fund. This fund shall be kept separate and apart from
all other moneys in the state treasury and shall be paid out by the state
treasurer upon warrants issued by the state auditor as certified to by
the commissioner of administration, upon verified vouchers of the
attorney general.
2. Such money, after appropriation pursuant to law, shall be available
for the payment of all costs and expenses incurred by the attorney
general in investigation, prosecution or enforcement of the provisions of
sections 416.011 to 416.161 or federal laws relating to antitrust, trade
regulation, restraint of trade or price fixing activities.
3. Ten percent of all recoveries obtained by the attorney general
pursuant to the authority conferred upon him by sections 416.011 to
416.161, whether by settlement or by judgment, shall be paid into the
state treasury to the credit of the antitrust revolving fund. All moneys
recovered as court costs by the attorney general pursuant to litigation
brought under the authority of sections 416.011 to 416.161 or federal
laws relating to antitrust, trade regulation, restraint of trade or price
fixing activities, shall be paid into the state treasury to the credit of
the antitrust revolving fund. (L. 1974 S.B. 424)
1. Whenever the attorney general has reason to believe that a
person under investigation may be in possession, custody, or control of
any books, documents, records, writings or tangible things, hereinafter
referred to as "documentary material", relevant to a civil investigation
of a violation of section 416.031, he may, prior to the institution of a
civil or criminal proceeding thereon, issue in writing, and cause to be
served upon such person, a civil investigative demand requiring such
person to produce such documentary material for examination.
2. Each such demand shall:
(1) State the nature of the conduct constituting the alleged antitrust
violation which is under investigation and the provision of law
applicable thereto;
(2) Describe the class or classes of documentary material to be produced
thereunder with such definiteness and certainty as to permit such
documentary material to be fairly identified;
(3) Prescribe a return date which will provide a reasonable period of
time within which the documentary material so demanded may be assembled
and made available for inspection and copying or reproduction; and
(4) Identify the custodian to whom such documentary material shall be
made available.
3. No such demand shall:
(1) Contain any requirement which would be held to be unreasonable if
contained in a subpoena duces tecum issued by a court of this state in
aid of a grand jury investigation of such alleged violation; or
(2) Require the production of any documentary material which would be
privileged from disclosure if demanded by a subpoena duces tecum issued
by a court of this state in aid of a grand jury investigation of such
alleged violation.
4. Service of a demand by the attorney general as provided herein may be
made by:
(1) Delivery of a duly executed copy thereof to the place of business of
the person to be served in this state, or if the person has no place of
business in this state, to his principal place of business or to the
residence of the person*** to be served; or
(2) Mailing by certified mail, return receipt requested and signed by the
person to whom service is directed, a duly executed copy thereof
addressed to the person to be served at his place of business in this
state, or if the person has no place of business in this state, to his
principal place of business or to the residence of the person to be
served.
5. A verified return by the individual serving any such demand or
petition setting forth the manner of such service shall be proof of such
service. In the case of service by certified mail, such return shall be
accompanied by the return post office receipt of delivery of such demand
signed by the person to whom service is directed.
6. The attorney general shall designate a member of his staff as document
custodian.
7. Any person upon whom any civil investigative demand issued under this
section has been duly served shall make such documentary material
available for inspection and copying or reproduction to the custodian
designated therein at the principal place of business of such person or
at such other place as such custodian and such person thereafter may
agree, and prescribe in writing or as the court may direct on the return
date specified in such demand or on such latter date as such custodian
may prescribe in writing. Such person may, upon written agreement between
such person and the custodian, substitute for copies of all or any part
of such documentary material originals thereof.
8. The custodian to whom any documentary material is so delivered shall
take physical possession thereof, and shall be responsible for the use
made thereof and for the return thereof pursuant to this section. The
custodian may cause the preparation of such copies of such documentary
material as may be required for official use. While in the possession of
the custodian, no documentary material so produced or copies thereof
shall be available for examination, without the consent of the person who
produced such documentary material, by any individual other than the
attorney general or a duly authorized member of his staff. Under such
reasonable terms and conditions as the attorney general shall prescribe,
documentary material while in the possession of the custodian shall be
available for examination by the person who produced such material or any
duly authorized representative of such person.
9. Whenever any attorney has been designated to appear on behalf of the
state, before any court or grand jury in any case or proceeding involving
any alleged antitrust violation, the custodian may deliver to such
attorney such documentary material in the possession of the custodian as
such attorney determines to be required for use in the presentation of
such case or proceeding on behalf of the state. Upon the conclusion of
any such case or proceeding, such attorney shall return to the custodian
any documentary material so withdrawn and copies thereof which have* not
passed into the control of such court or grand jury through the
introduction thereof into the record of such case or proceeding.
10. Upon the completion of the investigation for which any documentary
material was produced under this section and any case or proceeding
arising from such investigation, the custodian shall return to the person
who produced such documentary material all such documentary material and
copies thereof which have* not passed into the control of any court or
grand jury through the introduction thereof into the record of such case
or proceeding.
11. When any documentary material has been produced by any person under
this section for use in any antitrust investigation, and no such case or
proceeding arising therefrom has been instituted within a reasonable time
after completion of the examination and analysis of all evidence
assembled in the course of such investigation, such person shall be
entitled, upon written demand made upon the attorney general, to the
return of all documentary material and copies thereof so produced by such
person.
12. In the event of the death, disability, or separation from service of
the custodian of any documentary material produced under any demand
issued under this section, or the official relief of such custodian from
the responsibility for the custody and control of such documentary
material, the attorney general shall promptly designate another official
to serve as custodian thereof, and transmit notice in writing to the
person who produced such documentary material as to the identity and
address of the successor so designated. Any successor so designated shall
have with regard** to such materials all duties and responsibilities
imposed by this section upon his predecessor in office with regard
thereto, except that he shall not be held responsible for any default or
dereliction which occurred before his designation as custodian.
13. Whenever any person fails to comply with any civil investigative
demand duly served upon him under this section or whenever satisfactory
copying or reproduction of any such material cannot be done and such
person refuses to surrender such documentary material, the attorney
general, through such officers or attorneys as he may designate, may
file, in the circuit court of the state for the circuit in which such
person*** resides, is found, or transacts business, and serve upon such
person a petition for an order of such court for the enforcement of this
section, except that if such person transacts business in more than one
such circuit such petition may be filed in any such circuit, or in such
other circuit in which such person transacts business as may be agreed
upon by the parties to such petition.
14. Within twenty days after the service of any such demand upon any
person***, or at any time specified in the demand, whichever period is
shorter, such person may file, in the circuit court for the circuit
within which such person resides, is found, or transacts business in this
state, or if such person does not reside in or transact business in this
state in the circuit court within which the office of the custodian is
situated and serve upon such custodian a petition for an order of such
court modifying or setting aside such demand. The time allowed for
compliance with the demand in whole or in part as deemed proper and
ordered by the court shall not run during the pendency of such petition
in the court. Such petition shall specify each ground upon which the
petitioner relies in seeking such relief, and may be based upon any
failure of such demand to comply with the provisions of this section or
upon any constitutional or other legal right or privilege of such person.
15. At any time during which any custodian is in custody or control of
any documentary material delivered by any person in compliance with any
such demand, such person may file in the circuit court for the circuit
within which the office of such custodian is situated, and serve upon
such custodian a petition for an order of such court requiring the
performance by such custodian of any duty imposed upon him by this
section.
16. Whenever any petition is filed in any circuit court under this
section, such court shall have jurisdiction to hear and determine the
matter so presented, and to enter such order or orders as may be required
to carry into effect the provisions of this section. Any final order so
entered shall be subject to appeal by writ of prohibition. Any
disobedience of any final order entered under this section by any court
shall be punished as a contempt thereof. (L. 1974 S.B. 424)
*Word "has" appears in original rolls.
**Word "regards" appears in original rolls.
***Word "persons" appears in original rolls.
In any investigation or proceeding brought to enforce the
provisions of sections 416.011 to 416.161, no individual shall be
permitted to refuse to answer any question material to the matter in
controversy or to refuse to produce documentary material on the ground
that the testimony or documentary material required of him may tend to
incriminate him or subject him to a penalty; but no such person shall be
subject to criminal prosecution or to any action for a criminal penalty
or forfeiture on account of any transaction, matter or thing concerning
which he may testify or produce documentary material. (L. 1974 S.B. 424)
1. Any person, including the state, who is injured in his
business or property by reason of anything forbidden or declared unlawful
by sections 416.011 to 416.161 may sue therefor in any circuit court of
this state in which the defendant or defendants, or any of them, reside,
or have any officer, agent or representative, or in which any such
defendant, or any agent, officer or representative may be found. Such
person may:
(1) Sue for damages sustained by him, and if the judgment is for the
plaintiff he shall be awarded threefold damages by him sustained and
reasonable attorneys' fees as determined by the court, together with the
costs of suit; and
(2) Bring proceedings to enjoin the unlawful practices, and if decree is
for the plaintiff he shall be awarded reasonable attorneys' fees as
determined by the court, together with the costs of the suit. (L. 1974
S.B. 424)
1. Any action or proceeding, civil or criminal, authorized by
sections 416.011 to 416.161, shall be brought in the circuit court for
the circuit in which any defendant resides, engages in business or has an
agent, unless otherwise specifically provided herein.
2. Any action brought under sections 416.011 to 416.161 shall be barred
unless commenced within four years after the cause of action accrued. No
cause of action barred under existing law on August 13, 1974, shall be
revived by sections 416.011 to 416.161.
3. Whenever any civil or criminal proceeding is commenced by the state to
prevent, restrain or punish violations of sections 416.011 to 416.161,
but not including an action under section 416.121, brought by the state,
the running of the statute of limitations in respect to every private
right of action arising under sections 416.011 to 416.161 based in whole
or in part on any matter complained of in such proceedings shall be
suspended during the pendency thereof and for one year thereafter;
except, however, that whenever the running of the statute of limitations
in respect of a private cause of action arising under sections 416.011 to
416.161 is suspended hereunder, any action to enforce such cause of
action shall be forever barred unless commenced either within the period
of suspension or within four years after the cause of action accrued.
4. No action under sections 416.011 to 416.161 shall be barred on the
ground that the activity or conduct complained of in any manner affects
or involves interstate or foreign commerce. (L. 1974 S.B. 424)
Sections 416.011 to 416.161 shall be construed in harmony with
ruling judicial interpretations of comparable federal antitrust statutes.
(L. 1974 S.B. 424)
The remedies afforded the state under sections 416.011 to
416.161 shall be cumulative but the state shall not be permitted more
than one recovery of monetary damages arising out of the same act or
injury. (L. 1974 S.B. 424)
If any provision of sections 416.011 to 416.161 is declared
unconstitutional, or the applicability thereof to any person or
circumstance is held invalid, the constitutionality of the remainder of
sections 416.011 to 416.161 and the applicability thereof to other
persons and circumstances shall not be affected thereby. (L. 1974 S.B.
424)
As used in sections 416.410 to 416.560 the following terms are
construed to have the following meanings, except in those instances where
the context clearly indicates otherwise:
(1) "Bulk milk", milk in bulk form, in cans, tank cars or tank trucks
that is furnished to a processor for the purpose of processing and
manufacture into milk products;
(2) "Bulk milk handler", any person engaged in the business of
transferring title to bulk milk to a processor, except a cooperative
association organized under the laws of this state;
(3) "Cost to the bulk milk handler", the price paid dairy farmers for the
milk, plus receiving plant charge or a reasonable charge to cover all
costs of operating his own receiving plant, plus transportation cost to
the point of delivery to the purchaser;
(4) "Cost to the processor or distributor", the price paid for raw
materials, plus the cost of doing business, which shall include labor,
salaries paid executives and officers, rent, interest, depreciation,
power, supplies, maintenance of equipment, selling costs, advertising,
transportation and delivery costs, credit losses, all types of permits
and license fees, all taxes, insurance, and all overhead expenses of the
processor or distributor;
(5) "Cost to the retailer", the invoice price paid by the retailer plus
the retailer's cost of doing business. In the absence of specific
evidence the cost of doing business shall be presumed to be eight percent
of the invoice price, and this cost shall be calculated to the nearest
half cent per sales unit;
(6) "Director", the director of the department of agriculture;
(7) "Distributor", any person, other than a bulk milk handler, engaged in
the business of transferring title within the state to milk products for
a consideration, where the product is to be sold for resale or further
processing;
(8) "Market milk", milk disposed of in fluid form and which is approved
by an appropriate city, county or state health authority for distribution
and sale in fluid form in any part of the state of Missouri;
(9) "Milk products", market milk, pasteurized milk, vitamin D milk,
homogenized milk, flavored milk or flavored milk drinks, sweet cream,
whipping cream, homogenized cream, skim milk, buttermilk, and cultured
buttermilk;
(10) "Nonprocessing retailer", any person, not a processor, engaged in
the business of transferring title within the state to milk products for
a consideration where such product is to be used or consumed by the
purchaser and is not to be resold or used for the purpose of manufacture
or further processing;
(11) "Processor", any person engaged in the business of processing or
packaging bulk milk or other materials into milk products. (L. 1959 H.B.
255 § 1, A.L. 1963 p. 643, A.L. 1982 H.B. 1100)
1. No processor or distributor shall, with the intent or with
the effect of unfairly diverting trade from a competitor, or of otherwise
injuring a competitor, or of destroying competition, or of creating a
monopoly, advertise, offer to sell or sell within the state of Missouri,
at wholesale or retail, any milk product for less than cost to the
processor or distributor.
2. Proof of the advertising, offer to sell or sale of milk products by a
processor or distributor for less than cost to the processor or
distributor is prima facie evidence of a violation of this section.
3. A profit from the sale of products other than milk products is not
used in cost computation to subsidize or lower the cost of doing business
with respect to milk products. (L. 1959 H.B. 255 § 2)
(1962) Missouri unfair milk sales practices law held valid as against
attacks on the ground that it denied certain persons due process of law
and violated the equal rights provision of the state and federal
constitutions. Borden Company v. Thomason (Mo.), 353 S.W.2d 735. (1968)
Evidence supported finding that sale of milk below cost by defendant
damaged plaintiff and was in violation of this section. Plaintiff
entitled to treble damages for economic loss suffered as a result of
violation. Dean Foods Company v. Albrecht Dairy Company (A.), 396 F.2d
652.
1. No processor or distributor shall, with the intent or with
the effect of unfairly diverting trade from a competitor, or of otherwise
injuring a competitor, or of destroying competition, discriminate in
price in the sale of any milk product furnished from the same plant
between any of the towns, cities, municipalities or counties of this
state; except that no violation results from different prices which
reflect, in the case of a processor, the actual transportation cost from
point of processing to point of sale, and, in the case of a distributor,
the actual transportation cost from point of purchase to point of resale.
2. Proof of the advertising, offer for sale or sale of any milk products
furnished from the same plant in any town, city, municipality, or county
at prices less than advertised, offered for sale, or sold in any other
town, city, municipality or county by the processor or distributor, which
cannot be accounted for by the difference in the transportation costs is
prima facie evidence of a violation of this section. (L. 1959 H.B. 255 §
3)
(1964) This section does not apply to cost justified volume pricing as
such pricing does not constitute discriminations in price "between any of
the towns, cities, municipalities or counties of this state". Foremost
Dairies, Inc. v. Thomason (Mo.), 384 S.W.2d 651.
1. No nonprocessing retailer shall, with the intent or with the
effect of unfairly diverting trade from a competitor, or otherwise
injuring a competitor, or of destroying competition, or of creating a
monopoly, advertise, offer to sell or sell within the state of Missouri,
any milk product for less than cost to the retailer.
2. Proof of the advertising, offer to sell or sale of milk products by a
nonprocessing retailer is prima facie evidence of a violation of this
section. (L. 1959 H.B. 255 § 4)
1. No bulk milk handler shall, with the intent or with the
effect of unfairly diverting trade from a competitor, or of otherwise
injuring a competitor, or of destroying competition, or of creating a
monopoly, advertise, offer to sell or sell within the state of Missouri,
bulk milk, raw or pasteurized, that is intended for the processing of any
milk product for less than the cost to the bulk milk handler.
2. Proof of the advertising, offer to sell or sale of bulk milk by a bulk
milk handler for less than cost to the bulk milk handler is prima facie
evidence of a violation of this section. (L. 1959 H.B. 255 § 5)
1. No person shall, with the intent or with the effect of
unfairly diverting trade from a competitor, or of otherwise injuring a
competitor or of destroying competition, or of creating a monopoly,
advertise, offer to sell or sell any milk product with any other
commodity or service at a combined price which is less than the aggregate
of the prices for which the milk product and the other commodity or
service are offered for sale.
2. Proof of the advertising, offer to sell or sale of the milk product
and any other commodity or service at a combined price which is less than
the aggregate of the price for which the milk product and the other
commodity or service are offered for sale is prima facie evidence of a
violation of this section. (L. 1959 H.B. 255 § 6)
1. No milk processor or distributor shall, with the intent or
with the effect of unfairly diverting trade from a competitor, or of
otherwise injuring a competitor, or of destroying competition, or of
creating a monopoly, give or offer to give any milk product purchaser any
rebate, discount, free service or services, advertising allowance, pay
for advertising space used jointly, donation, free merchandise, rent on
space used by the retailer for storing or displaying the milk processor's
or distributor's merchandise, financial aid, free equipment, or any other
thing of value; except the bona fide return by a cooperative association
to its members on a patronage basis of the savings realized on products
sold and distributed to the members or patrons.
2. Proof of the giving or offer to give anything of value is prima facie
evidence of a violation of this section.
3. No milk product purchaser shall accept from any milk processor or
distributor any rebate, discount, free service or services, any
advertising allowance, pay for advertising space used jointly, donation,
free merchandise, rent on space used by retailer for storing or
displaying the milk processor's or distributor's merchandise, financial
aid, free equipment, or any other thing of value; except the bona fide
receipt from a cooperative association of a patronage refund based on the
patronage of the purchaser with the cooperative association.
4. Proof of the acceptance of any thing of value by any milk product
purchaser is prima facie evidence of the violation of this section.
5. This section does not prevent a processor or distributor from
furnishing point-of-sale advertising material to a retailer without cost
for the promotion of the sale of the processor's or distributor's
products.
6. This section does not prevent a discount of two percent or less for
payment on or before a certain date. (L. 1959 H.B. 255 § 7)
(1964) Evidence that dairy gave milk to certain number of persons first
entering store on three consecutive days as part of an introductory sales
promotion in the locality held insufficient to establish that dairy
intended to and did unfairly divert trade from a competitor. State ex
rel. Thomason v. Adams Dairy Co. (Mo.), 379 S.W.2d 553.
(l964) The word "discount" was not intended to include volume pricing or
quantity discounts which are cost justified price differences available
to all customers and rules of commissioner prohibiting such practices
were void. Foremost Dairies, Inc. v. Thomason (Mo.), 384 S.W.2d 651.
(1982) Section construed to prohibit franchise agreements whereby a
grocery store franchisor distributed food, supplied related services,
leased property, and on occasion loaned money to franchisees. Fleming
Foods of Missouri, Inc. v. Runyan (Mo. banc), 634 S.W.2d 183.
The provisions of sections 416.415 to 416.430 do not apply to
advertisements, offers to sell or sales where:
(1) The sales are made in an isolated transaction and not in the usual
course of business;
(2) The merchandise is damaged;
(3) The items are sold upon the final liquidation of any business;
(4) The items are sold for charitable purposes or to unemployment relief
agencies;
(5) The items are sold by an officer acting under the direction of any
court;
(6) The price of the item is made in good faith to meet the equally lower
price of competition, provided however, the person charged with a
violation of this section further affirmatively proves the reduction in
price is not made with the intent or with the effect of unfairly
diverting trade from a competitor, or of otherwise injuring a competitor,
or of destroying competition, or of creating a monopoly, and unless such
is affirmatively shown, the court shall enter its order enjoining the
violation as charged. (L. 1959 H.B. 255 § 8)
In any case in which a complaint is made in writing to the
director by a person claiming to be injured because milk products are
being offered for sale or sold in violation of the provisions of sections
416.410 to 416.560, or in which such violations are apparent to the
director, the director shall forthwith cause an investigation to be made
of the complaint, and if, in the judgment of the director, the
investigation reveals that there is probable cause for the complaint, the
director shall call upon the attorney general or the prosecuting attorney
of any county in which a violation of the provisions of sections 416.410
to 416.560 occurs to institute an injunction suit in a court of competent
jurisdiction of the county in which the alleged violations took place to
restrain the violations of sections 416.410 to 416.560 as may be revealed
by the investigation; and it is the duty of the attorney general or
prosecuting attorney to institute and prosecute the injunction suits. (L.
1959 H.B. 255 § 9, A.L. 1963 p. 643)
(1963) Prior to amendment of this section in 1963, held that the filing
of a written complaint by some person claiming to be injured with the
director of the department of agriculture and the posting of a bond were
conditions precedent to the maintenance of an injunction proceeding by
the director for violation of section 416.425. State ex rel. Thomason v.
Roth (Mo.), 372 S.W.2d 94.
(1968) Below cost sale of milk for four day period as a sales promotion
does not entitle director to injunction. State ex rel. Davis v. Thrifty
Foodliner, Inc. (Mo.), 432 S.W.2d 287.
Any person who is injured in business or property by reason of
another person's violation of any provision of sections 416.410 to
416.560 may intervene in the suit for injunction instituted pursuant to
section 416.450 against the other person or he may bring a separate
action and recover three times the actual damages sustained as a result
of the violation, together with the costs of the suit, or may sue to
enjoin the violation of any provision of sections 416.410 to 416.560. (L.
1959 H.B. 255 § 10)
(1969) Construction of this section by federal court in Albrecht Dairy
Co. v. Dean Foods Co. (Mo.), 396 F.(2d) 652, applied by Missouri Supreme
Court. Collier v. Roth (Mo.), 434 S.W.2d 502.
(1971) Treble damages under this provision are discretionary with the
trier of fact. Collier v. Roth (A.), 468 S.W.2d 57.
The director is authorized and directed to promulgate rules and
regulations to carry out the purposes of sections 416.410 to 416.560. No
rule or portion of a rule promulgated under the authority of this chapter
shall become effective unless it has been promulgated pursuant to the
provisions of section 536.024, RSMo. (L. 1959 H.B. 255 § 11, A.L. 1993
S.B. 52, A.L. 1995 S.B. 3)
(1964) Rules of director prohibiting volume pricing or quantity
discounts, and exempting sale of milk products to public school
districts, agencies and institutions of the state and political
subdivisions held to be beyond director's authority and void. Foremost
Dairies, Inc. v. Thomason (Mo.), 384 S.W.2d 651.
1. In making investigations pursuant to section 416.450, the
director is authorized and empowered to administer oaths and to issue
subpoenas for persons and pertinent operating records. In case of failure
or refusal to obey a subpoena issued to any person, any court of
competent jurisdiction within the county in which the investigation is
carried on or in which the person guilty of failure or refusal to obey is
found or resides or transacts business or has his principal place of
business, upon application by the director, may issue an order requiring
the person to appear before the director, there to produce evidence, or
to give testimony touching the matter under investigation.
2. Any person willfully failing to obey an order of the court is guilty
of contempt of court and shall be proceeded against as provided by law.
(L. 1959 H.B. 255 § 12)
In examining books and records, the director has authority to
employ any recognized accounting firm or cost finding organization. (L.
1959 H.B. 255 § 13)
1. Upon the filing of the complaint with the director, the
director shall require of the complainant, a bond in the sum of one
thousand dollars to defray the expenses of the necessary investigation
incident to the complaint.
2. In the event the investigation discloses a violation of sections
416.410 to 416.560, and a court action is necessary to secure relief, the
surety is released from his liability under the bond, and in an
injunction suit brought by the attorney general or the prosecuting
attorney as provided in section 416.450, the cost of the investigation is
a part of the cost against the defendant in the suit, if he is found to
have violated the provisions of sections 416.410 to 416.560.
3. In the event the complaint is found not to involve actionable
violation, the complainant is required to defray the necessary expenses
of the investigation, but not to exceed the sum of one thousand dollars.
(L. 1959 H.B. 255 § 14)
The remedies provided for in sections 416.410 to 416.560 are
exclusive and no criminal fines or penalties shall be imposed for
violation of sections 416.410 to 416.560. (L. 1959 H.B. 255 § 15)
Any action arising under sections 416.410 to 416.560, whether in
law or equity, shall be commenced within two years after the right of
action first accrues or is forever barred. (L. 1959 H.B. 255 § 16)
1. It is unlawful for any person to operate a milk or milk
products manufacturing or processing plant or to act as a distributor
within this state unless licensed under the provisions of sections
416.410 to 416.560; provided, however, that no such license shall be
required for the distribution of cottage cheese.
2. Each license is issued on July first of each year and must be
conspicuously posted in the place of business to which it applies. A
license is issued upon satisfactory application to the director,
accompanied by a license fee based upon the amount of sales during the
previous calendar year ending on December thirty-first of milk products
except cottage cheese, and the license fee is equivalent to not more than
one-half cent per hundred weight of the sales of milk products.
3. The director shall set the amount of the license fee for manufacturing
and processing plants at least yearly, upon hearing, not to exceed
one-half cent per hundred weight, and may set a licensing fee for
distributors not to exceed three dollars per year or in the amount only
as is necessary to carry out the provisions of sections 416.410 to
416.560.
4. The director is hereby authorized and empowered to suspend or revoke
the license of any person who acts as a distributor or who operates a
milk or milk products manufacturing or processing plant which is subject
to the provisions of sections 416.410 to 416.560 and whether located
inside or outside the state of Missouri, or to refuse to issue a license
to any applicant therefor if the director, after a public hearing, has
found that the applicant has violated any of the provisions of sections
416.410 to 416.560, or the rules and regulations adopted hereunder. No
rule or portion of a rule promulgated under the authority of sections
416.410 to 416.560 shall become effective unless it has been promulgated
pursuant to the provisions of section 536.024, RSMo. Any applicant shall
have full rights to counsel, to produce witnesses in his behalf at the
hearing, and to have ten days' notice in writing of the date, time and
place of the hearing, and the charges and grounds upon which his license
is sought to be revoked or suspended, or to be refused a license. The
order of suspension, revocation, or refusal to issue a license, shall not
become final until ten days after the date thereof, and after the party
to the proceeding has been notified in writing of the action of the
director. Any party to the proceedings that is aggrieved by any final
decision or order of the director may appeal the order in the manner
provided for appeals in the administrative procedure law of Missouri. (L.
1959 H.B. 255 § 17, A.L. 1963 p. 643, A.L. 1982 H.B. 1100, A.L. 1995 S.B.
3)
1. All moneys collected and received by the director, arising
from any license fees established pursuant to sections 416.410 to
416.560, shall be paid into the state treasury and shall, by the state
treasurer, be placed in a separate fund to be known as the "Milk Control
Fund" which is hereby established.
2. No money shall be paid out of this fund except by appropriations of
the general assembly for the administration of sections 416.410 to
416.560. (L. 1959 H.B. 255 § 18)
Any person who acts as a distributor or who operates a milk or
milk products manufacturing or processing plant located outside of this
state and sells, offers for sale or distributes milk or milk products in
this state shall pay the license fee provided for in sections 416.410 to
416.560 on all sales in this state of milk products except cottage
cheese, and shall be subject to all of the provisions of sections 416.410
to 416.560. (L. 1959 H.B. 255 § 19, A.L. 1963 p. 643)
In any case where a person acts as a distributor or operates a
milk processing plant within this state or such a plant located outside
this state and is making sales within this state without having first
obtained a license as provided in sections 416.410 to 416.560, the
attorney general or the prosecuting attorney shall bring suit in a court
of competent jurisdiction within the county in which the violation occurs
to enjoin the sales or distribution of milk or milk products. In
addition, the director, or his authorized agents or representatives are
authorized and empowered to issue and enforce a written or printed
"stop-sale" order to the owner or custodian of the milk products. The
order shall prohibit the further sale of the milk products until the
provisions of sections 416.410 to 416.560 have been complied with. The
owner or custodian of the milk products shall have the right to appeal
from the order to the circuit court of the county or city in which the
milk products are located, praying for a judgment as to the justification
of such order and for the discharge of the milk products from the order
prohibiting the sale in accordance with the findings of the court. (L.
1959 H.B. 255 § 20, A.L. 1963 p. 643, A.L. 1978 H.B. 1634)
Effective 1-2-79
The performance of any act subject to the provisions of sections
416.410 to 416.560 by a person who is a nonresident of this state shall
be deemed:
(1) An agreement by him that he, his executor, administrator, successor,
assign, or other legal representative, shall be subject to the
jurisdiction of the courts of this state in all actions and proceedings
brought against him, his executor, administrator, successor, assign, or
other legal representative, by either the state of Missouri or a resident
or nonresident plaintiff for violation of the provisions of sections
416.410 to 416.560; and
(2) An appointment by the nonresident, his executor, administrator,
successor, assign, or other legal representative of the state of
Missouri, as his lawful attorney and agent upon whom may be served all
process in suits pertaining to the actions and proceedings; and
(3) An agreement by the nonresident that any process in any suit so
served shall be of the same legal force and validity as if personally
served in this state. (L. 1959 H.B. 255 § 21)
All process in suits brought under the provisions of sections
416.410 to 416.560 shall be in form and substance the same as now
provided for in suits against residents of this state. (L. 1959 H.B. 255
§ 22)
1. Service of process in suits brought under the provisions of
sections 416.410 to 416.560 shall be made by delivering a copy of the
summons, with a copy of the petition attached, together with a remittance
of two dollars, to the secretary of state of Missouri at his office, or
in his absence, to the chief clerk of the secretary of state, at his
office, and the service shall be sufficient service upon the nonresident.
2. The secretary of state shall immediately mail to the defendant, and to
each of them if there be more than one, by restricted, registered or
certified mail, addressed to the defendant at his last known address,
residence or place of abode a notice of the service and a copy of the
process and petition. (L. 1959 H.B. 255 § 23)
The notification provided for in section 416.520 shall be
substantially in the following form, to wit:
To (here insert the name of each defendant and his residence, the last
known place of abode as definitely as known): You will take notice that
original process in suit against you, a copy of which is hereto attached,
was duly served upon you at Jefferson City, Cole County, Missouri, by
serving same on the Secretary of State of the State of Missouri, or his
Chief Clerk. Dated at ......., Missouri, this ... day of ...., 19...
........................
Secretary of State (L. 1959 H.B. 255 § 24)
In lieu of mailing the notification to the defendant in a
foreign state, plaintiff may cause said notification to be personally
served in the foreign state on the defendant by an adult person not a
party to the suit by delivering said notification to the defendant or by
offering to make the delivery in case defendant refuses to accept same,
or by having said notification served on defendant by an officer duly
qualified to serve legal process in the state or jurisdiction where the
defendant is found and the officer's return showing the service to have
been made, filed in the case on or before the return day of the process,
or within such further time as the court may allow. Upon the service a
general judgment may be taken against defendant or defendants. (L. 1959
H.B. 255 § 25)
Proof of the mailing or personal delivery of said notification
to the nonresident by an adult person not an officer serving same shall
be made by affidavit of the party doing said acts. All affidavits of
service shall be endorsed upon or attached to the original papers to
which they relate and including the returned registry receipt shall be
forthwith filed with the court in which the action is filed and pending.
(L. 1959 H.B. 255 § 26)
The foregoing provisions relative to service of process in suits
against nonresidents shall not be deemed to prevent actual personal
service in this state upon a nonresident in the time, manner, form, or
under the conditions provided for service on residents, and nothing
contained in sections 416.410 to 416.560 shall be construed as in any
manner limiting, affecting or repealing any cause of action, right, or
method of procedure now provided by law, but the provisions of said
sections are cumulative and in addition to any existing right, remedy,
cause of action, and method of procedure. (L. 1959 H.B. 255 § 27)
Except as otherwise provided under sections 416.450 and 416.455,
any suit brought under the provisions of sections 416.410 to 416.560
shall be filed in the county in which the cause of action accrues or in
the county where the plaintiff resides, and if there be other defendants
in the action who are residents of the state of Missouri, then the action
shall be brought in any county in which any one of said defendants
resides, or in the county within which the plaintiff resides and the
defendant may be found. (L. 1959 H.B. 255 § 28)
The court in which the action is pending shall grant such
continuance to a nonresident defendant as may be proper to afford him
reasonable opportunity to defend the action. (L. 1959 H.B. 255 § 29)
It shall be the duty of the secretary of state to keep a record
of all process served upon him, or his chief clerk, under the provisions
of sections 416.410 to 416.560, which record will show the day and hour
of service of every process. (L. 1959 H.B. 255 § 30)
The fee of two dollars paid by plaintiff to the secretary of
state under section 416.520 at the time of service of the process shall
be taxed as part of plaintiff's costs if he prevails in the action or
proceeding. (L. 1959 H.B. 255 § 31)
Sections 416.600 to 416.640 may be known and shall be cited as
the "Missouri Motor Fuel Marketing Act". (L. 1993 S.B. 374)
As used in sections 416.600 to 416.640, the following words and
phrases mean:
(1) "Affiliate", any person who, other than by means of franchise, is
controlled by, or is under common control with, any other person, whether
through stock ownership or otherwise;
(2) "Cost", is the sum of:
(a) a. If the motor fuel is not purchased from an affiliate, the lowest
invoice cost that the seller charged to the purchaser for motor fuel of
like grade and quality within three days prior to the date of any alleged
unlawful resale by the purchaser, less trade discounts, allowances or
rebates which the purchaser receives on the particular invoice or
transfer; or
b. If motor fuel is purchased or received from an affiliate, the lowest
transfer price that the affiliate charged to the purchaser or receiver
for motor fuel of like grade and quality within three days prior to the
date of any alleged unlawful resale by the purchaser or receiver, less
trade discounts, allowances, or rebates which the purchaser receives on
the particular invoice or transfer; plus
(b) The cost of doing business; plus
(c) Freight charges and all applicable federal, state and local taxes not
already included in the invoice cost or transfer price;
(3) "Cost of doing business", all costs incurred in the operation of the
business for fair market rental value, licenses, taxes, utilities,
insurance and nonmanagerial labor;
(4) "Motor fuel", gasoline, diesel fuel, gasohol and all other fuels of a
type designated for use as a motor fuel in self-propelled vehicles
designated primarily for use on public streets, roads and highways;
(5) "Person", any individual, firm, partnership, corporation, association
or other entity;
(6) "Retailer", any person engaged in the sale of motor fuel to the
public at retail;
(7) "Retail sale", any sale of motor fuel to the public for consumption;
(8) "Sale", any transfer, gift, sale, offer for sale, or advertisement
for sale in any manner or by any means, including any transfer of motor
fuel by a person to himself or his affiliate;
(9) "Sell", any act of making a sale or offer for sale;
(10) "Transfer price", the price used by a person in transferring motor
fuel to itself or an affiliate for resale at another marketing level. (L.
1993 S.B. 374)
Each person engaged in commerce in motor fuel in this state is
required to establish and publicly disclose upon request its transfer
price on all grades of motor fuel transferred or sold to itself or an
affiliate for resale in this state at a different marketing level of
distribution. (L. 1993 S.B. 374)
1. It is unlawful for any person engaged in commerce within this
state to sell or offer to sell motor fuel below cost as defined in
subdivision (2) of section 416.605, if:
(1) The intent of the sale or offer is to injure competition; or
(2) The intent of the sale or offer is to induce the purchase of other
merchandise, to unfairly divert trade from a competitor, or otherwise to
injure a competitor.
2. It is unlawful for any person engaged in commerce within this state to
sell or offer to sell motor fuel at a price lower than the seller charges
other persons at the same time and on the same level of distribution, if
the intent of the sale or offer is to injure competition.
3. It is unlawful for a person engaged in commerce in this state to sell
or transfer motor fuel to itself or an affiliate for resale in this state
on a different marketing level of distribution at a transfer price lower
than the price it charges a person who purchases for resale at the same
time and on the same level of distribution, if the intent of the sale or
transfer is to injure competition. (L. 1993 S.B. 374, A.L. 1995 H.B. 414)
(1996) Amendment to section by CCS/SS/SCS/HS/HB 414, Eighty-Eighth
General Assembly, First Regular Session, which deleted the words "or
effect" after the word "intent" in subdivisions (1) and (2) of subsection
1, subsection 2, and subsection 3, held unconstitutional as violating the
single subject requirement of article III, section 23. Missouri Petroleum
Marketers Association, et al. v. State of Missouri, et al. and Voss Oil,
Inc., Case No. CV195-989CC (Cole County Circuit Court, 11/20/96), appeal
dismissed, No. 79535 (Supreme Court of Missouri, 6/19/97).
(2004) Concept of injury is confined to action of lowering posted prices
to injure a competitor by forcing it to sell product below cost, thus
forcing the competitor to operate business at a loss. State ex rel. Nixon
v. Quiktrip Corp., 133 S.W.3d 33 (Mo.banc).
1. It is not a violation of section 416.615 if a difference
exists at the same level of distribution between the transfer price or
sale price of motor fuel of like grade and quality and the price charged
to a person who purchases for resale, including any discount, rebate,
allowance, service or facility granted to any of a supplier's own
marketing operations in excess of those provided to a person who
purchases for resale, if the difference is due to a difference in
shipping method, transportation or quantity in which the motor fuel is
sold.
2. It is not a violation of section 416.615 if a difference exists in a
transfer price and sale price or between sales prices at the same
marketing level if the difference exists because of a good faith effort
to meet the equally low price of a competitor.
3. It is not a violation of subsection 1 of section 416.615 if the sale
below cost is the result of a good faith effort to meet the equally low
price of a competitor. In determining whether a person has set the price
at which motor fuel is sold or offered for sale to meet the price of a
competitor, the court shall consider only whether the seller or offeror
has set the price of motor fuel to match the price at which a competitor
has sold or offered motor fuel, without regard to any other items sold or
offered in conjunction with the sale or offer for sale of the motor fuel.
(L. 1993 S.B. 374)
1. Any person who violates any of the provisions of section
416.615 shall forfeit and pay to the state a civil penalty of a minimum
of one thousand dollars and up to five thousand dollars per violation.
Each day on which a violation occurs shall be considered a separate
violation.
2. The attorney general, with such assistance as he may require from the
appropriate county prosecuting attorney, may investigate suspected
violations of sections 416.600 to 416.640 and may commence and try all
such actions for a civil penalty. All reasonable and necessary expenses
incurred by a prosecuting attorney or the prosecuting attorney's staff in
assisting the attorney general shall be reimbursed from appropriations
made to the attorney general. All funds recovered by the attorney general
shall be paid to the general revenue fund. (L. 1993 S.B. 374)
1. The several circuit courts of this state are invested with
jurisdiction to prevent and restrain violations of section 416.615.
2. The attorney general may institute civil proceedings to prevent and
restrain violations of sections 416.600 to 416.640. The attorney general
may employ special counsel in suits to enforce the provisions of sections
416.600 to 416.640. The attorney general, at his discretion, may direct
the appropriate county prosecuting attorney of any county in which any
proceeding is instituted or brought by the state under sections 416.600
to 416.640 or in which any investigation of a violation of sections
416.600 to 416.640 is occurring to aid and assist him in the conduct of
such investigations and proceedings. All reasonable and necessary
expenses incurred by a county prosecuting attorney or the prosecuting
attorney's staff in assisting the attorney general shall be reimbursed
from appropriations made to the attorney general.
3. The attorney general is authorized to enter into consent judgments or
decrees with any party defendant in an action brought under sections
416.600 to 416.640; however, no such consent judgment or decree shall
become final until approved by the circuit court where filed or until a
period of sixty days has elapsed since the filing of the consent judgment
or decree whichever occurs first, except that no such approval may be
entered by the circuit court until the thirty-first day after the filing
of the consent judgment or decree.
4. A final judgment or decree rendered in any civil proceeding brought by
the state under sections 416.600 to 416.640 shall be prima facie evidence
against the defendant in any action or proceeding brought by any other
party under sections 416.600 to 416.640 against the defendant as to all
matters respecting which the judgment or decree would be an estoppel
between the parties thereto, if any such action is maintained within one
year of the date the judgment or decree is entered. This subsection does
not apply to consent judgments or decrees entered before the taking of
any testimony in the case or to judgments or decrees entered in actions
brought in the state courts under section 416.635. (L. 1993 S.B. 374)
Any person who is injured in his business or property in a
relevant geographic market by reason of anything forbidden or declared
unlawful by sections 416.600 to 416.640 may sue therefor in any circuit
court of this state in which the defendant or defendants, or any of them,
reside, or have any officer, agent or representative, or in which any
such defendant, or any agent, officer or representative may be found.
Such action shall be brought within four years of the alleged occurrence.
Such person may:
(1) Sue for damages sustained by such person, and if the judgment is for
the plaintiff, such person shall be awarded threefold damages by him
sustained and reasonable attorney's fees as determined by the court,
together with the costs of suit; and
(2) Bring proceedings to enjoin the unlawful practices, and if decree is
for the plaintiff, such person shall be awarded reasonable attorney's
fees as determined by the court, together with the costs of the suit. (L.
1993 S.B. 374)
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