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Senate File 496

Partial Bill History

Bill Text

PAG LIN
  1  1    Section 1.  NEW SECTION.  473B.1  TITLE – PURPOSE.
  1  2    1.  This chapter is entitled the "Iowa Fair Motor Fuel
  1  3 Marketing Act".
  1  4    2.  The purpose of this chapter is to protect the public
  1  5 interest, and to provide for enforcement and penalties with
  1  6 respect to the requirements and prohibition of this chapter.
  1  7    Sec. 2.  NEW SECTION.  473B.2  LEGISLATIVE FINDINGS.
  1  8    The general assembly makes the following findings with
  1  9 respect to the marketing of motor fuel in Iowa:
  1 10    1.  In general, subsidies in the marketing of motor fuel
  1 11 result whenever profits associated with the marketing of motor
  1 12 fuel are transferred between operations, allowing the refined
  1 13 fuel to be sold at less than the actual cost to produce such
  1 14 fuel.
  1 15    2.  Subsidies in the marketing of motor fuel most commonly
  1 16 occur in one of three ways:
  1 17    a.  When refiners use profits from the refining of crude
  1 18 oil to cover below-normal or negative returns earned from
  1 19 motor fuel marketing operations.
  1 20    b.  When a marketer with more than one location uses
  1 21 profits from one location to cover losses resulting from
  1 22 below-cost selling of motor fuel at another location.
  1 23    c.  When a business uses profits from nonmotor fuel sales
  1 24 to cover losses resulting from below-cost selling of motor
  1 25 fuel.
  1 26    3.  Independent motor fuel marketers are unable to survive
  1 27 the results of subsidized pricing at the market level if all
  1 28 of an independent motor fuel marketer's profit comes from
  1 29 marketing operations.
  1 30    4.  Consequently, subsidized pricing is inherently
  1 31 predatory because it aims to reduce overall competition in the
  1 32 petroleum industry by eliminating independent motor fuel
  1 33 marketers from the marketplace, which ultimately harms
  1 34 consumers by decreasing competition.
  1 35    Sec. 3.  NEW SECTION.  473B.3  LEGISLATIVE FINDINGS.
  2  1    1.  Marketing of motor fuel in the state of Iowa affects
  2  2 the public interest, and should be protected because the state
  2  3 of Iowa and petroleum marketers have invested millions of
  2  4 dollars in maintaining an environmentally safe delivery system
  2  5 of motor fuel to all areas of the state.
  2  6    2.  The public should also be protected against creation of
  2  7 monopolies or unfair methods of competition in transactions
  2  8 involving the sale of, offers of sale, or inducements to sell
  2  9 motor fuel in the wholesale and retail trades in this state.
  2 10    3.  Advertising, offering for sale, or selling motor fuel
  2 11 below cost or at a cost lower than charged to other persons on
  2 12 the same marketing level with the intent of injuring
  2 13 competitors or destroying or substantially lessening
  2 14 competition is an unfair and deceptive practice that should be
  2 15 prohibited in this state.
  2 16    Sec. 4.  NEW SECTION.  473B.4  DEFINITIONS.
  2 17    As used in this chapter, unless the context otherwise
  2 18 requires:
  2 19    1.  "Affiliate" means any person who, other than by means
  2 20 of franchise, controls, is controlled by, or is under common
  2 21 control with any other person.
  2 22    2.  "Basic cost of motor fuel" means the lower of the
  2 23 following two amounts:
  2 24    a.  The invoice cost of the motor fuel to the wholesaler or
  2 25 retailer.
  2 26    b.  The lowest replacement cost of motor fuel to the
  2 27 wholesaler or retailer.  The replacement cost is calculated
  2 28 within five days prior to the date of sale, in the quantity
  2 29 last purchased, less all trade discounts, except customary
  2 30 discounts for cash, plus the full value of freight costs and
  2 31 taxes, if not already included in the invoice cost of the
  2 32 motor fuel.
  2 33    In computing its basic cost of motor fuel, its cost of
  2 34 doing business, and in meeting competition, a refiner must
  2 35 assess such fees in a like manner to its affiliates.
  3  1    3.  "Competition" includes any person who competes with
  3  2 another person in the same market area at the same level of
  3  3 distribution.
  3  4    4.  "Cost of doing business" or "overhead expenses"
  3  5 includes all costs incurred in the conduct of business,
  3  6 including, but not limited to the following items:
  3  7    a.  Labor, including salaries of executives and officers.
  3  8    b.  Rent, which must be no less than fair market value
  3  9 based on current use of the property.
  3 10    c.  Interest on borrowed capital.
  3 11    d.  Depreciation.
  3 12    e.  The selling cost of the property.
  3 13    f.  Maintenance of equipment.
  3 14    g.  Transportation or freight cost.
  3 15    h.  Losses due to breakage or damage.
  3 16    i.  Credit card fees, or other charges.
  3 17    j.  Credit losses.
  3 18    k.  Costs attributable to licenses.
  3 19    l.  Taxes.
  3 20    m.  Insurance.
  3 21    n.  Advertising costs.
  3 22    5.  "Cost to refiner" means the refiner's posted terminal
  3 23 price to the wholesale class of trade.  If a refiner does not
  3 24 regularly sell to the wholesale class of trade at that
  3 25 terminal or does not post such a terminal price, the refiner
  3 26 may use as its cost the posted price of any other refiner at
  3 27 any terminal within the general trade area that has products
  3 28 readily available for sale to the wholesale class of trade.
  3 29    6.  "Cost to retailer" means, as applied to retail sales,
  3 30 the lesser of the invoice or replacement cost of the motor
  3 31 fuel within five days prior to the date of sale, in the
  3 32 quantity last purchased, less all trade discounts except
  3 33 customary discounts for cash, plus state, federal, and local
  3 34 taxes, inspection fees, and freight cost if paid by the
  3 35 retailer, plus the cost of doing business.
  4  1    7.  "Cost to wholesaler" means, as applied to wholesale
  4  2 distribution, the lesser of the invoice or replacement cost of
  4  3 the motor fuel within five days prior to the date of sale, in
  4  4 the quantity last purchased, less all trade discounts except
  4  5 customary discounts for cash, plus state, federal, and local
  4  6 taxes, inspection fees, freight charges not otherwise included
  4  7 in the cost of motor fuel, cartage to the retail outlet if
  4  8 paid by the wholesaler, plus the cost of doing business.
  4  9    8.  "Customary discount for cash" includes any allowance,
  4 10 whether a part of a larger discount or not, made to a
  4 11 wholesaler or retailer when such person pays in full for motor
  4 12 fuel within a specified time.
  4 13    9.  "Motor fuel" includes all motor fuel upon which a motor
  4 14 fuel excise tax is imposed under chapter 452A.
  4 15    10.  "Refiner" means any person engaged in the production
  4 16 or refining of motor fuel, whether such production or refining
  4 17 occurs in this state or elsewhere, and includes any affiliate
  4 18 of such person.
  4 19    11.  "Retailer" includes any person who is engaged in this
  4 20 state in the business of selling motor fuel at retail to the
  4 21 general public for ultimate consumption, and includes any
  4 22 group of persons, cooperative associations, buying pools, and
  4 23 any other person or group purchasing from licensed
  4 24 distributors or wholesalers.
  4 25    12.  "Sale" or "sell" means any transfer in return for an
  4 26 exchange, barter, gift, offer for sale, advertising for sale,
  4 27 soliciting of an order, or distribution in any manner or by
  4 28 any means whatsoever.
  4 29    13.  "Sale at retail", "sell at retail",  and "retail
  4 30 sales" include any sale for consumption or use in the ordinary
  4 31 course of trade or usual conduct of the seller's business.
  4 32    14.  "Sale at wholesale", "sell at wholesale",  and
  4 33 "wholesales" include any sale made in the ordinary course of
  4 34 trade or usual conduct of the wholesaler's business to a
  4 35 retailer for the purpose of resale.
  5  1    15.  "Supplier" means a person who furnishes motor fuel to
  5  2 marketing operations, or a different level of distribution.
  5  3    16.  "Transfer price" includes the price used by a person
  5  4 in transferring motor fuel to itself or an affiliate for
  5  5 resale at another marketing level.  Such price shall be
  5  6 determined using standard, functional accounting procedures.
  5  7    17.  "Wholesale distributor" means any person, including
  5  8 any affiliate of such person, in commerce within the state,
  5  9 who purchases motor fuel for sale, consignment, or
  5 10 distribution to another, or receives motor fuel on consignment
  5 11 for consignment or distribution to the person's own motor fuel
  5 12 accounts or to accounts of the person's suppliers, but shall
  5 13 not include a person who is an employee of, or merely serves
  5 14 as, a common carrier providing transportation services for
  5 15 such person.
  5 16    18.  "Wholesaler" means any person qualified as a
  5 17 wholesaler of motor fuel with the department of revenue and
  5 18 finance, and includes any person who brings or causes to be
  5 19 brought into this state motor fuel purchased directly from the
  5 20 manufacturer.
  5 21    Sec. 5.  NEW SECTION.  473B.5  CERTAIN BELOW-COST FUEL
  5 22 SALES PROHIBITED.
  5 23    It shall be unlawful for any person engaged in commerce in
  5 24 this state to sell or offer to sell motor fuel below cost or
  5 25 to sell or offer to sell motor fuel at a price lower than the
  5 26 seller charges other persons on the same day and on the same
  5 27 level of distribution, within the same market area.
  5 28    Sec. 6.  NEW SECTION.  473B.6  CERTAIN BELOW-COST FUEL
  5 29 TRANSFERS PROHIBITED.
  5 30    It shall be unlawful for any person engaged in commerce in
  5 31 this state to sell or transfer motor fuel to itself or an
  5 32 affiliate for resale at another marketing level or
  5 33 distribution at a transfer price that is below cost or lower
  5 34 than the price the person charges a person who purchases for
  5 35 resale on the same day and at the same distribution level,
  6  1 within the same market area, where the effect is to injure
  6  2 competition.
  6  3    Sec. 7.  NEW SECTION.  473B.7  CERTAIN SALES AND TRANSFER
  6  4 PRICE DIFFERENTIALS AUTHORIZED.
  6  5    1.  It is not a violation of this chapter if a difference
  6  6 exists between the transfer price of motor fuel of like grade
  6  7 and quality and the price charged to a person who purchases
  6  8 for resale at the same level of distribution, including any
  6  9 discounts, rebates, allowances, services, or facilities
  6 10 granted any of a supplier's own marketing operations in excess
  6 11 of those provided to a person who purchases for resale at the
  6 12 same level of distribution, if the lower price is due to a
  6 13 cost differential incurred because of a difference in shipping
  6 14 method, transportation, marketing, sale, or quantity, in which
  6 15 such motor fuel is sold.
  6 16    2.  It is not a violation of this chapter:
  6 17    a.  If a price is established in good faith to meet an
  6 18 equally low price of a competitor in the same market area on
  6 19 the same level of distribution selling the same or similar
  6 20 product of like grade and quality.
  6 21    b.  If a sale is listed under section 473B.10.
  6 22    Sec. 8.  NEW SECTION.  473B.8  UNLAWFUL ACTS GENERALLY.
  6 23    It shall be unlawful:
  6 24    1.  For any person engaged in commerce in this state to
  6 25 sell or offer to sell motor fuel at wholesale or retail, as
  6 26 the case may be, where the effect is to injure competition.
  6 27    2.  For any person, where the effect is to injure
  6 28 competition, to offer a rebate, to offer to give a rebate, or
  6 29 to offer a concession of any kind in connection with the sale
  6 30 of motor fuel.
  6 31    3.  For any retailer to induce or attempt to induce or to
  6 32 procure or attempt to procure the purchase of motor fuel at a
  6 33 price less than the cost to a wholesaler.
  6 34    Any person who violates any provision of this section shall
  6 35 be subject to the provisions and penalties of this chapter.
  7  1    Sec. 9.  NEW SECTION.  473B.9  BELOW-COST COMBINED SELLING
  7  2 PRICE OF MOTOR FUEL AND PROMOTIONAL GIFTS PROHIBITED.
  7  3    In all advertisements, offers for sale, or sales involving
  7  4 two or more items, at least one item of which is motor fuel,
  7  5 at a combined price, and in all advertisements, offers of
  7  6 sale, or sales, involving the giving of any gift or concession
  7  7 of any kind, including coupons, the wholesaler's or retailer's
  7  8 combined selling price shall not be below the cost to the
  7  9 wholesaler or the cost to the retailer, respectively, of the
  7 10 total of all articles, products, commodities, gifts, and
  7 11 concessions included in such transactions, except that if any
  7 12 such articles, products, commodities, gifts, and concessions
  7 13 shall not be motor fuel, the basic cost shall be determined in
  7 14 a manner similar to that provided in section 473B.4,
  7 15 subsection 2.
  7 16    Sec. 10.  NEW SECTION.  473B.10  EXCLUSIONS.
  7 17    1.  This chapter shall not apply to a sale at wholesale or
  7 18 retail made in any of the following circumstances:
  7 19    a.  In an isolated transaction not in the usual course of
  7 20 business.
  7 21    b.  When motor fuel is advertised, offered for sale, or
  7 22 sold in a bona fide clearance sale for the purpose of
  7 23 discontinuing trade in motor fuel, and the advertising, offer
  7 24 to sell, or sale states the reason as discontinuing trade, and
  7 25 provides the quantity of the motor fuel for sale.
  7 26    c.  When motor fuel is advertised, offered for sale, or
  7 27 sold as imperfect or damaged, and the advertising, offer of
  7 28 sale, or sale states the reason as imperfect or damaged goods,
  7 29 and the quantity of the motor fuel for sale.
  7 30    d.  When motor fuel is sold upon the final liquidation of a
  7 31 business.
  7 32    e.  When motor fuel is advertised, offered for sale, or
  7 33 sold by any fiduciary or other officer under the order or
  7 34 direction of any court.
  7 35    2.  The goods subject to sale under subsection 1 must be
  8  1 kept separate from other stock on hand, and must be clearly
  8  2 and legibly marked with the reason for the sale.  Any
  8  3 advertisement of the goods must indicate the same facts and
  8  4 the quantity to be sold for the exclusion of this section to
  8  5 apply.
  8  6    3.  The price of motor fuel advertised, offered for sale,
  8  7 or sold under the exceptions specified in this section shall
  8  8 not be considered the price of a competitor under this
  8  9 chapter.
  8 10    Sec. 11.  NEW SECTION.  473B.11  COMPETITIVE SALES.
  8 11    1.  Any wholesaler may advertise, offer to sell, or sell
  8 12 motor fuel at a price made in good faith to meet the price of
  8 13 a competitor who offers the same type of service and who sells
  8 14 the same item at cost.
  8 15    2.  Any retailer may advertise, offer to sell, or sell
  8 16 motor fuel at a price made in good faith to meet the price of
  8 17 a competitor who sells the same item at cost.
  8 18    3.  In the absence of proof of the actual cost to a
  8 19 competing wholesaler or a competing retailer, the cost may be
  8 20 presumed to be the lowest cost to wholesalers or retailers
  8 21 within the same market area as determined by a cost survey
  8 22 made pursuant to section 473B.15, subsection 2.
  8 23    Sec. 12.  NEW SECTION.  473B.12  CONTRACTS VIOLATIVE OF
  8 24 CHAPTER RENDERED VOIDABLE AND UNENFORCEABLE.
  8 25    Any contract, express or implied, made by any person in
  8 26 violation of any of the provisions of this chapter is voidable
  8 27 and unenforceable and no recovery shall be permitted under
  8 28 such a contract by any person who has violated the provisions
  8 29 of this chapter.
  8 30    Sec. 13.  NEW SECTION.  473B.13  SALES BETWEEN WHOLESALERS.
  8 31    If a wholesaler sells motor fuel to any other wholesaler,
  8 32 the seller shall not be required to include the cost to the
  8 33 wholesaler in the wholesaler's selling price; however, the
  8 34 latter wholesaler, upon resale of the motor fuel to a
  8 35 retailer, must include such cost to the wholesaler in the
  9  1 wholesaler's selling price.
  9  2    Sec. 14.  NEW SECTION.  473B.14  PRIMA FACIE SHOWING OF
  9  3 VIOLATION.
  9  4    1.  A plaintiff presents a prima facie showing of a
  9  5 violation under this chapter by establishing any of the
  9  6 following:
  9  7    a.  That the plaintiff's purchase price from a refiner or
  9  8 wholesaler is greater than the refiner's transfer price.
  9  9    b.  That the plaintiff's purchase price from a refiner or
  9 10 wholesaler plus the plaintiff's cost of doing business is
  9 11 greater than the refiner's or wholesaler's retail posted sales
  9 12 price.
  9 13    c.  That the plaintiff's basic cost of motor fuel plus the
  9 14 plaintiff's cost of doing business is greater than the posted
  9 15 sales price at a retail location of a competitor within the
  9 16 plaintiff's marketing area suspected of selling motor fuel in
  9 17 violation of this chapter.
  9 18    2.  In any action brought under section 473B.16 or 473B.17,
  9 19 the burden shifts to the defendant upon a prima facie showing
  9 20 of a violation.
  9 21    Sec. 15.  NEW SECTION.  473B.15  COST EVIDENCE.
  9 22    1.  In determining cost to the wholesaler and cost to the
  9 23 retailer, the court shall receive evidence tending to show any
  9 24 of the following:
  9 25    a.  That a person complained against under this chapter
  9 26 purchased the motor fuel involved in the complaint, at a
  9 27 fictitious price, or upon terms, or in such a manner, or under
  9 28 such invoices, as to conceal the true costs, discounts, or
  9 29 terms of purchase.
  9 30    b.  Evidence of the normal, customary, and prevailing terms
  9 31 and discounts in connection with other sales of a similar
  9 32 nature in the market area.
  9 33    2.  A cost survey made pursuant to recognized statistical
  9 34 and cost accounting practices that determines and establishes
  9 35 on the basis of actual existing conditions the lowest cost to
 10  1 wholesalers or the lowest cost to retailers for a market area
 10  2 relevant to a complaint charging a violation of this chapter
 10  3 shall be deemed competent evidence in any action or proceeding
 10  4 under this chapter as tending to prove actual cost to the
 10  5 wholesaler or retailer complained against.  Any party against
 10  6 whom any such cost survey is introduced in evidence shall have
 10  7 the right to offer evidence tending to prove any inaccuracy of
 10  8 such cost survey or any state of facts that impair its
 10  9 probative value, or to introduce independent cost evidence.
 10 10    Sec. 16.  NEW SECTION.  473B.16  INJUNCTIVE AND OTHER
 10 11 RELIEF BY ATTORNEY GENERAL OR COUNTY ATTORNEY.
 10 12    A person who competes with another person in the same
 10 13 market area at the same level of distribution and who violates
 10 14 any provision of this chapter shall be subject to injunctive
 10 15 and other relief in a civil action brought by the attorney
 10 16 general or a county attorney in any district court in any
 10 17 county in which any of the alleged violations of this chapter
 10 18 took place, or in any county where any of the defendants
 10 19 reside or do business.  Any such person shall also be liable
 10 20 for attorney fees and costs incurred by the attorney general
 10 21 or the county attorney.
 10 22    Sec. 17.  NEW SECTION.  473B.17  ACTION BY PERSON INJURED
 10 23 OR THREATENED BY INJURY – INJUNCTIVE RELIEF – DAMAGES –
 10 24 ATTORNEY FEES – JURISDICTION.
 10 25    1.  Any person who competes with another person in the same
 10 26 market area at the same level of distribution who is injured
 10 27 by any violation of this chapter, or who would suffer injury
 10 28 from any threatened violation of this chapter, may maintain an
 10 29 action in any district court in any county in which the injury
 10 30 or threatened injury did or will take place, or where any of
 10 31 the parties reside or do business, to prevent, restrain, or
 10 32 enjoin such violation or threatened violation, including an
 10 33 action for a declaratory judgment, injunctive relief, and for
 10 34 actual damages.
 10 35    2.  If a violation or threatened violation of this chapter
 11  1 is established, the court shall enjoin and restrain, or
 11  2 otherwise prohibit, such violation or threatened violation
 11  3 and, in addition, the court shall assess in favor of the
 11  4 plaintiff and against the defendant the costs of suit,
 11  5 including reasonable attorney fees.
 11  6    3.  In the action it is not necessary that actual damages
 11  7 to the plaintiff be proved, but where alleged and proved, the
 11  8 plaintiff in such action, shall be entitled to recover from
 11  9 the defendant the damages sustained by the plaintiff.  Any
 11 10 actual damages found to have resulted from violations of this
 11 11 chapter shall be trebled by the court in making its award.
 11 12    4.  The court may also award court costs and reasonable
 11 13 attorney fees to the prevailing party.
 11 14    5.  If a court determines that any action brought under
 11 15 this section is frivolous, the person bringing the action
 11 16 shall be liable for all of the other party's costs and
 11 17 expenses incurred in the defense of the action, including
 11 18 reasonable attorney fees.  The party shall also be subject to
 11 19 the provisions of section 617.16 regarding frivolous actions,
 11 20 if the party has unsuccessfully prosecuted three or more
 11 21 actions in the preceding five-year period.
 11 22    6.  Any action under this section shall be brought within
 11 23 two years after the alleged violations occurred.  
 11 24                           EXPLANATION
 11 25    This bill creates new Code chapter 473B, the "Iowa Fair
 11 26 Motor Fuel Marketing Act".
 11 27    New Code section 473B.1 of the bill states the title of the
 11 28 chapter, and provides that the purpose is to protect the
 11 29 public interest, as well as to provide for enforcement and
 11 30 penalties.
 11 31    New Code section 473B.2 sets forth legislative findings in
 11 32 regard to subsidies in the marketing of motor fuel, and new
 11 33 Code section 473B.3 provides that the legislative intent is to
 11 34 protect the public interest against monopolies or unfair
 11 35 methods of competition in sales of motor fuel, as well as to
 12  1 prevent injury to competition from the sale of motor fuel
 12  2 below cost.
 12  3    New Code section 473B.4 provides definitions for the new
 12  4 chapter, including "affiliate", "basic cost of motor fuel",
 12  5 "competition", "cost of doing business", "cost to refiner",
 12  6 "cost to wholesaler", "customary discount for cash", "motor
 12  7 fuel", "refiner", "retailer", "sale", "sale at retail", "sale
 12  8 at wholesale", "supplier", "transfer price", "wholesale
 12  9 distributor", and "wholesaler".
 12 10    New Code section 473B.5 prohibits certain below-cost sales
 12 11 of motor fuel.  New Code section 473B.6 prohibits certain
 12 12 below-cost transfers of motor fuel where the effect is to
 12 13 injure competition.
 12 14    New Code section 473B.7 provides that a price differential
 12 15 that is due to a difference in costs of shipping,
 12 16 transportation, marketing, sale, or quantity will not
 12 17 constitute a violation of Code chapter 473B.  In addition, a
 12 18 price that is established in good faith to meet a price
 12 19 offered by a competitor will not violate Code chapter 473B.
 12 20 Finally, sales that are listed under new Code section 473B.10,
 12 21 including such unique sales as damaged goods or liquidation
 12 22 sales that are specially advertised and conducted, do not
 12 23 violate Code chapter 473B.
 12 24    New Code section 473B.9 provides that when a sale involves
 12 25 two items, one of which is motor fuel, the combined price of
 12 26 the two items may not be below the cost to the wholesaler or
 12 27 retailer of the total of all items.
 12 28    New Code section 473B.10 provides that certain sales are
 12 29 excluded from the provision of Code chapter 473B, provided
 12 30 that the sales are properly advertised and the goods are
 12 31 clearly marked and kept separate:  (1) an isolated transaction
 12 32 not in the usual course of business; (2) a bona fide clearance
 12 33 sale for discontinuing trade in motor fuel; (3) imperfect or
 12 34 damaged goods; (4) final liquidation of a business; and (5)
 12 35 sale by a fiduciary or other officer under the order or
 13  1 direction of a court.  The price of a sale under Code section
 13  2 473B.10 is not the price of a competitor for purposes of Code
 13  3 chapter 473B.
 13  4    New Code section 473B.11 provides that any wholesaler or
 13  5 retailer may meet the price of a competitor who offers the
 13  6 same type of service and who sells the same item.  In the
 13  7 absence of proof of actual cost, evidence from a cost survey
 13  8 may be used.
 13  9    New Code section 473B.12 provides that a contract made in
 13 10 violation of any provision of Code chapter 473B is voidable
 13 11 and unenforceable.
 13 12    New Code section 473B.13 provides for the calculation of
 13 13 prices when one wholesaler sells to another, who then sells to
 13 14 a retailer.
 13 15    New Code section 473B.14 provides that a prima facie
 13 16 violation under the Code chapter is established by showing any
 13 17 of the following:  (1) that the plaintiff's purchase price
 13 18 from a refiner or wholesaler is greater than the refiner's
 13 19 transfer price; (2) that the plaintiff's purchase price from a
 13 20 refiner or wholesaler plus the plaintiff's cost of doing
 13 21 business is greater than the refiner's or wholesaler's retail
 13 22 posted sales price; (3) that the plaintiff's basic cost of
 13 23 motor fuel plus the plaintiff's cost of doing business is
 13 24 greater than the posted sales price at a retail location of a
 13 25 competitor within the plaintiff's marketing area.  After
 13 26 showing a prima facie case, the burden of proof shifts to the
 13 27 defendant.
 13 28    New Code section 473B.15 addresses the issue of cost
 13 29 surveys as evidence of actual cost, and other issues relating
 13 30 to cost evidence.
 13 31    New Code section 473B.16 provides for injunctive and other
 13 32 relief and recovery of attorney fees in a civil action brought
 13 33 by the attorney general or a county attorney.
 13 34    New Code section 473B.17 provides for a private cause of
 13 35 action by a competitor injured or threatened by injury by a
 14  1 violation of Code chapter 473B.  The competitor may sue for
 14  2 injunctive relief, declaratory judgment, and for actual
 14  3 damages that are trebled.  The prevailing party is also
 14  4 entitled to court costs and reasonable attorney fees.  The
 14  5 court may assess costs and expenses, including reasonable
 14  6 attorney fees, in the event of a frivolous action.  The Code
 14  7 section contains a two-year statute of limitations.  
 14  8 LSB 1601SV 79
 14  9 jj/pj/5
     

Text: SF00495                           Text: SF00497
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