2019 Tennessee Code
Title 47 - Commercial Instruments and Transactions
Chapter 25 - Trade Practices
Part 6 - Petroleum Trade Practices
§ 47-25-611. Sales below cost to retailer.
(a)
(1) No dealer shall make, or offer or advertise to make, sales at retail at below cost to the retailer, where the effect is to injure or destroy competition or substantially lessen competition, unless such sales at retail are exempt under § 47-25-204.
(2) No dealer shall limit, restrict, condition, or refuse to make sales at retail of petroleum distillates stored at the retail outlet in one hundred (100) gallon or larger containers to another dealer or a distributor at the same or lower price as offered or advertised to the public if such petroleum distillates are offered, advertised, or sold to the public at below cost to the retailer.
(3) The burden of proving an exemption from this subsection (a) shall be upon the dealer claiming its sales are exempt.
(b) No vertically integrated producer may sell or transfer a petroleum distillate to its own retail outlet at a price which is less than the price at which that petroleum distillate is offered for sale by the vertically integrated producer to a dealer operating in the same class of trade and within the same competitive area as the retail outlet of the vertically integrated producer. Such sales at retail under this subsection (b) by a vertically integrated producer shall be made in accordance with all other provisions of this section.
(c) Any dealer who violates this section shall be subject to a civil penalty not to exceed one thousand dollars ($1,000) per day for each day during which the act or omission continues or occurs.
(d)
(1) Any person having an interest which is or may be adversely affected by a violation or threatened violation of subsection (a) may commence a civil action on such person's own behalf against any dealer who is alleged to be in violation of this section, to recover actual and special damages, for payment of civil penalties, and to enjoin the dealer who has violated, is violating or who is otherwise likely to violate this section. No person whose sales were exempt or who acted in good faith believing such sales were exempt shall be denied injunctive relief, if appropriate.
(2) No action may be commenced under subdivision (d)(1) prior to ten (10) days after the plaintiff has given notice by certified mail of the alleged violation to any alleged violator and to the attorney general and reporter.
(3) The action may be brought in a court of competent jurisdiction in the county where the alleged or threatened violation of this section took place, is taking place, or is about to take place, or in the county in which such dealer resides, has a principal place of business, or can be found.
(4) If the court finds that the violations of subsection (a) were willful or knowing violations, the court may award three (3) times the actual damage sustained and may provide such other relief as it considers necessary and proper. It shall be presumed that retail sales below cost to the retailer by a dealer after the dealer has received the notice required in subdivision (d)(2) are willful and knowing.
(5) Upon a finding by the court that this section has been violated, the court may award to the person bringing such action reasonable attorney's fees and costs.
(e) The attorney general and reporter may bring an action in the name of the state in a court as described in subsection (d), for appropriate relief, including civil penalties, temporary restraining order, temporary injunction, or permanent injunction, against any dealer who has violated, is violating, or who is otherwise likely to violate this section.
(f) Any court of competent jurisdiction shall have power to restrain violations of this section, to award appropriate damages, and to apply any appropriate civil penalties under subsection (c).
(g) This section is remedial legislation and shall be liberally construed to promote its purposes. The powers and remedies in this section shall be cumulative and supplementary to all other powers and remedies otherwise provided by law.
(h) Nothing in this section shall prohibit a dealer from making, or offering or advertising to make, sales at retail which are made in good faith to compete with the equally low or lower retail price of a competitor. Such sales at retail under this subsection (h) by a vertically integrated producer shall be made in accordance with subsection (b).
(i) Nothing contained within this section shall be construed to regulate the price of petroleum distillates purchased from a producer or a distributor:
(1) By a person solely for use in agricultural production activities on the farm of such person;
(2) By an employer for the business use of employees;
(3) By any common carrier regulated by the Tennessee public utility commission, the department of safety and/or the department of transportation;
(4) By a person for industrial and commercial purposes which do not include the sale of petroleum distillates to the public; or
(5) For any other commercial transactions.
