US Codex
Bill
Notes

Title II — Mergers

S. 2039 · 117th Congress · Jun 14, 2021 · Lineage

II Mergers

Sec. 201 Premerger notification filing fees

Section 605 of Public Law 101–162 (15 U.S.C. 18a note) is amended—
(1)
in subsection (b)—
(A)
in paragraph (1)—
(i)
by striking “$45,000” and inserting “$30,000”;
(ii)
by striking “$100,000,000” and inserting “$161,500,000”;
(iii)
by striking “2004” and inserting “2022”; and
(iv)
by striking “2003” and inserting “2021”;
(B)
in paragraph (2)—
(i)
by striking “$125,000” and inserting “$100,000”;
(ii)
by striking “$100,000,000” and inserting “$161,500,000”;
(iii)
by striking “but less” and inserting “but is less”; and
(iv)
by striking “and” at the end;
(C)
in paragraph (3)—
(i)
by striking “$280,000” and inserting “$250,000”; and
(ii)
by striking the period at the end and inserting “but is less than $1,000,000,000 (as so adjusted and published);”; and
(D)
by adding at the end the following:

“(4) $400,000 if the aggregate total amount determined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $1,000,000,000 (as so adjusted and published) but is less than $2,000,000,000 (as so adjusted and published);

“(5) $800,000 if the aggregate total amount determined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $2,000,000,000 (as so adjusted and published) but is less than $5,000,000,000 (as so adjusted and published); and

“(6) $1,250,000 if the aggregate total amount determined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $5,000,000,000 (as so adjusted and published).”

(2)
by adding at the end the following:

“(c)

“(1) For each fiscal year commencing after September 30, 2022, the filing fees in this section shall be increased each year by an amount equal to the percentage increase, if any, in the Gross National Product of the United States, as determined by the Department of Labor or its successor, for the year then ended over the level so established for the year ending September 30, 2021.

“(2) As soon as practicable, but not later than January 31 of each year, the Attorney General shall publish the adjusted amounts required by paragraph (1).

“(3) The Attorney General shall not adjust amounts required by paragraph (1) if the percentage increase described in paragraph (1) is less than 1 percent.

“(4) An amount adjusted under this section shall be rounded to the nearest multiple of $5,000.”

Sec. 202 Merger presumptions

Section 7 of the Clayton Act (15 U.S.C. 18), as amended by section 106 of this Act, is amended—
(1)
by striking all that proceeds “person engaged in commerce” and inserting the following:

“7. Acquisition by one corporation of stock of another

“(a) In general—No”

(2)
by striking “No person shall acquire,” and inserting the following:

“(b) Acquisition of persons engaged in commerce—No person shall acquire”

(3)
by striking “This section shall not apply” and inserting the following:

“(d) Not lessening competition—This section shall not apply”

(4)
by striking “Nor shall anything herein” and inserting the following:

“(e) Common carriers—Nor shall anything herein”

(5)
by striking “Nothing contained in this section shall be held” and inserting the following:

“(f) Hold harmless—Nothing contained in this section shall be held”

(6)
by striking “Nothing contained in this section shall apply to transactions” and inserting the following:

“(g) Certain transactions—Nothing contained in this section shall apply to transactions”

(7)
by inserting after subsection (b), as so designated by this section, the following:

“(c) Actions by United States

“(1) In general—The United States may initiate a proceeding to enjoin a transaction prohibited by this section.

“(2) Rebuttable presumptions

“(A) In general—In a proceeding initiated by the United States to enjoin a transaction prohibited by this section, it shall be presumed that the effect of a transaction may be substantially to lessen competition, or to tend to create a monopoly, if—

“(i) the United States shows by a preponderance of the evidence that, as a result of the transaction, the combined firm would be able meaningfully to increase prices or reduce output, innovation, or quality in a market; or

“(ii)

“(I) the transaction would combine persons that compete, would compete, or would attempt to compete against each other, absent the transaction; and

“(II) the combined firm would have a post-transaction share of the market that—

“(aa) is greater than 33 percent; or

“(bb) if the acquiring person is owned or controlled by a foreign government, is greater than 5 percent.

“(B) Rebuttal—A defendant may rebut a presumption under clause (i) or (ii) of subparagraph (A) only if the defendant demonstrates by a preponderance of the evidence that—

“(i) the combined parties post-transaction would not be able to exercise market power; or

“(ii) the anticompetitive effects of the transaction—

“(I) are insubstantial; or

“(II) are clearly outweighed by the procompetitive benefits of the transaction in the relevant market.

“(C) Rule of construction—The presumptions under clauses (i) and (ii) of subparagraph (A) shall not limit any other presumption courts have created or used or may create or use in resolving cases under this section.

“(3) Irrebuttable presumption—In a proceeding initiated by the United States to enjoin a transaction prohibited by this section, except to the extent the transaction is necessary to prevent serious harm to the national economy, the effect of a transaction shall be deemed to substantially to lessen competition, or to tend to create a monopoly, if—

“(A) the transaction would combine persons that compete, would compete, or would attempt to compete against each other absent the transaction; and

“(B) the combined firm would have a post-transaction share of the market that is greater than 66 percent.”

Sec. 203 Merger notification requirements

(a)
In general— Section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is amended—
(1)
by redesignating subclause (III) of subparagraph (B)(ii) as item (bb);
(2)
by striking “(ii)(I) any voting” and all that follows through “(II) any voting securities or assets of a person not engaged in manufacturing” and inserting “(II)(aa) any voting securities or assets of a person”;
(3)
by striking “(B)(i) in excess” and inserting “(ii)(I) in excess”;
(4)
by striking “(A) in excess” and inserting “(i) in excess”;
(5)
by inserting “(A)” after “(2)”;
(6)
by striking “published) or more.” and inserting “published) or more; or”; and
(7)
by inserting after subparagraph (A), as so redesignated, the following:

“(B) except with respect to an acquisition made solely for the purpose of investment, the acquiring person—

“(i) has assets in excess of $500,000,000,000; or

“(ii) is owned or controlled by a foreign government.”

(b)
Repeal of limited nexus to commerce in the United States exception—
(1)
In general— The Assistant Attorney General shall amend sections 802.50 and 802.51 of title 16, Code of Federal Regulations, and any other rule or regulation, to repeal any exception from filing a notification under subsection (a) of section 7A of the Clayton Act (15 U.S.C. 18a) or from the waiting period described in subsection (b)(1) of such section with respect to an acquisition on the basis that the acquisition has a limited nexus with the United States.
(2)
Limitation— The Assistant Attorney General may not promulgate or enforce any rule that excludes from the requirements under section 7A of the Clayton Act (15 U.S.C. 18a) any acquisition by or of a person engaged in commerce or in any activity affecting commerce on the basis that the acquisition has a limited nexus with the United States.