Section 1 Short title
This Act may be cited as the “Competition and Antitrust Law Enforcement Reform Act of 2024”.
Competition and Antitrust Law Enforcement Reform Act of 2024
A BILL
To reform the antitrust laws to better protect competition in the American economy, to amend the Clayton Act to modify the standard for an unlawful acquisition, to deter anticompetitive exclusionary conduct that harms competition and consumers, to enhance the ability of the Department of Justice and the Federal Trade Commission to enforce the antitrust laws, and for other purposes.
Sec. 2 Findings and purposes
Findings— Congress finds that—
competitive markets, in which multiple firms compete to buy and sell products and services, are critical to ensuring economic opportunity for all people in the United States and providing resilience to the economy during unpredictable times;
when companies compete, businesses offer the highest quality and choice of goods and services for the lowest possible prices to consumers and other businesses;
competition fosters small business growth, reduces economic inequality, and spurs innovation and job creation;
competitive markets are crucial for the United States global economic competitiveness and national security;
in the United States economy today, the presence and exercise of market power is substantial and growing;
the presence and exercise of market power makes it more difficult for people in the United States to start their own businesses, depresses wages, and increases economic inequality, with particularly damaging effects on historically disadvantaged communities;
market power and undue market concentration contribute to the consolidation of political power, undermining the health of democracy in the United States;
the anticompetitive effects of monopoly power or buyer market power include higher prices, lower quality, lessened choice, reduced innovation, foreclosure of competitors, and increased entry barriers;
monopsony power or seller market power allows a firm to force suppliers of goods or services to accept below market prices or to force workers to accept below market wages, resulting in lower quality products and services, reduced opportunities for suppliers and workers, reduced availability of products and services for consumers, reduced innovation, foreclosure of competitors, and increased entry barriers;
horizontal consolidation, vertical consolidation, and conglomerate mergers all have the potential to increase market power and cause anticompetitive harm;
extensive consolidation is reducing competition and threatens to place the American dream further out of reach for many consumers in the United States;
since 2008, firms in the United States have engaged in over $10,000,000,000,000 in mergers and acquisitions;
the acquisition of nascent or potential rivals by dominant firms can present significant long-term threats to competition and innovation and harm the global economic competitiveness of the United States;
the acquisition, by one of its competitors, of a maverick firm that plays a disruptive role in the market, by using an innovative business model or technology, offering lower prices or new, different products or services products, or by other means that benefit consumers, often presents a threat to competition;
section 7 of the Clayton Act (15 U.S.C. 18) is the primary line of defense against anticompetitive mergers;
in recent years, some court decisions and enforcement policies have limited the vitality of the Clayton Act to prevent harmful consolidation by—
discounting previously accepted presumptions that certain acquisitions are anticompetitive;
focusing inordinately on the effect of an acquisition on price in the short term, to the exclusion of other potential anticompetitive effects;
underestimating the dangers that horizontal, vertical, and conglomerate mergers will lower quality, reduce choice, impede innovation, exclude competitors, increase entry barriers, or create buyer power, including monopsony power;
failing to properly account for direct evidence of competitive harm, including intent evidence; and
requiring the government to prove harmful effects of a proposed merger to a near certainty;
anticompetitive exclusionary conduct constitutes a particularly harmful exercise of market power and a substantial threat to the United States economy;
when dominant sellers exercise market power, they harm buyers by overcharging them, reducing product or service quality, limiting their choices, and impairing innovation;
when dominant buyers exercise market power, they harm suppliers by underpaying them, limiting their business opportunities, and impairing innovation;
when dominant employers exercise market power, they harm workers by paying them low wages, reducing their benefits, and limiting their future employment opportunities;
nascent or potential rivals, even those that are unprofitable or inefficient, are an important source of competitive discipline for dominant firms;
antitrust enforcement against anticompetitive exclusionary conduct has been impeded when courts have declined to rigorously examine the facts in favor of relying on inaccurate economic assumptions that are inconsistent with contemporary economic learning, such as presuming that market power is not durable and can be expected to self-correct, that monopolies can drive as much or more innovation than a competitive market, that above-cost pricing cannot harm competition, and other flawed assumptions;
the courts of the United States have improperly implied immunity from the antitrust laws based on Federal regulatory statutes, even limiting the application of statutory antitrust savings clauses passed by Congress;
the civil remedies currently available to cure violations of the Sherman Antitrust Act, including injunctions, equitable monetary relief, and private damages, have not proven sufficient, on their own, to deter anticompetitive conduct;
in some cases, effective deterrence requires the imposition of civil penalties, alone or in combination with existing remedies, including structural relief, behavioral relief, private damages, and equitable monetary relief, including disgorgement and restitution; and
Federal antitrust enforcement budgets have failed to keep pace with the growth of the economy and increasing demands on agency resources, significantly undermining the ability of the Federal antitrust agencies to fulfill their law enforcement missions and contributing to the rise of market power in the American economy.
Purposes— The purposes of this Act are to—
enhance competition throughout the American economy by strengthening antitrust enforcement by the Department of Justice, the Federal Trade Commission, the State enforcement agencies, and private parties;
revise the legal standard under section 7 of the Clayton Act to better enable enforcers to arrest the likely anticompetitive effects of harmful mergers in their incipiency, as Congress intended, by clarifying that the potential effects that may justify prohibiting a merger under the Clayton Act include lower quality, reduced choice, reduced innovation, the exclusion of competitors, or increased entry barriers, in addition to increased price to buyers or reduced price to sellers;
amend the Clayton Act to clarify that an acquisition that tends to create a monopsony violates the Clayton Act;
establish simple, cost-effective decision rules that require the parties to certain acquisitions that either significantly increase concentration or are extremely large bear the burden of establishing that the acquisition will not materially harm competition;
prohibit and deter exclusionary conduct that harms competition, particularly by dominant firms;
enable the Department of Justice and the Federal Trade Commission to seek civil monetary penalties, in addition to existing remedies, for violations of the Sherman Act;
give the Department of Justice and the Federal Trade Commission additional financial resources and enforcement tools to craft remedies for individual violations that are effective to deter future unlawful conduct and proportionate to the gravity of the violation;
provide further protections for those who provide evidence of anticompetitive conduct to government enforcers and potential financial rewards for whistleblowers who provide information to the government that leads to a criminal fine; and
grant successful antitrust plaintiffs the right to obtain prejudgment interest on damages awards to further deter anticompetitive conduct and increase compensation to injured parties.
Sec. 3 Definition
In this Act the term antitrust laws—
has the meaning given that term in the first section of the Clayton Act (15 U.S.C. 12); and
includes—
section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent that such section applies to unfair methods of competition; and
this Act and the amendments made by this Act.
Sec. 4 Unlawful acquisitions
Market power— Subsection (a) of the first section of the Clayton Act (15 U.S.C. 12) is amended by adding at the end the following:
“The term market power in this Act means the ability of a person, or a group of persons acting in concert, to profitably impose terms or conditions on counterparties, including terms regarding price, quantity, product or service quality, or other terms affecting the value of consideration exchanged in the transaction, that are more favorable to the person or group of persons imposing them than what the person or group of persons could obtain in a competitive market.”
in the first and second undesignated paragraphs, by striking “substantially to lessen” each place that term appears and inserting “to create an appreciable risk of materially lessening”;
by inserting “or a monopsony” after “monopoly” each place that term appears; and
by adding at the end the following:
“In a case brought by the United States, the Federal Trade Commission, or a State attorney general, a court shall determine that the effect of an acquisition described in this section may be to create an appreciable risk of materially lessening competition or to tend to create a monopoly or a monopsony, in or affecting commerce, if—
“(1) the acquisition would lead to a significant increase in market concentration in any relevant market;
“(2) the acquisition would increase the ability and incentive to engage in exclusionary conduct, as defined in section 26A of the Clayton Act;
“(3)
“(A) the acquiring person has a market share of greater than 50 percent or otherwise has significant market power, as a seller or a buyer, in any relevant market, and as a result of the acquisition, the acquiring person would obtain control over entities or assets that compete or have a reasonable probability of competing with the acquiring person in the same relevant market; or
“(B) as a result of the acquisition, the acquiring person would obtain control over entities or assets that have a market share of greater than 50 percent or otherwise have significant market power, as a seller or a buyer, in any relevant market, and the acquiring person competes or has a reasonable probability of competing with the entities or assets over which it would obtain control, as a result of the acquisition, in the same relevant market;
“(4) the acquisition would lead to the combination of entities or assets that compete or have a reasonable probability of competing in a relevant market, and either the acquiring person or the entities or assets over which it would obtain control prevents, limits, or disrupts coordinated interaction among competitors in a relevant market or has a reasonable probability of doing so;
“(5) the acquisition—
“(A) would likely enable the acquiring person to unilaterally and profitably exercise market power or materially increase its ability to do so; or
“(B) would materially increase the probability of coordinated interaction among competitors in any relevant market; or
“(6)
“(A) the acquisition is not a transaction that is described in section 7A(c); and
“(B)
“(i) as a result of such acquisition, the acquiring person would hold an aggregate total amount of the voting securities and assets of the acquired person in excess of $5,000,000,000 (as adjusted and published for each fiscal year beginning after September 30, 2024, in the same manner as provided in section 8(a)(5) to reflect the percentage change in the gross national product for such fiscal year compared to the gross national product for the year ending September 30, 2023; or
“(ii)
“(I) the person acquiring or the person being acquired has assets, net annual sales, or a market capitalization greater than $100,000,000,000 (as so adjusted and published); and
“(II) as a result of such acquisition, the acquiring person would hold an aggregate total amount of the voting securities and assets of the acquired person in excess of $50,000,000 (as so adjusted and published), unless the acquiring or acquired person establishes, by a preponderance of the evidence, that the effect of the acquisition will not be to create an appreciable risk of materially lessening competition or will not tend to create a monopoly or a monopsony. In this paragraph, the term materially means more than a de minimis amount”
Sec. 5 Post-proceeding data
Section 7A of the Clayton Act (15 U.S.C. 18a) is amended by adding at the end the following:
“(l)
“(1) Each person who resolves a proceeding brought under the antitrust laws by the Federal Trade Commission or United States by entering into an agreement or by the final judgment in a Federal or administrative court regarding an acquisition with respect to which notification is required under this section shall, on an annual basis during the 5-year period beginning on the date on which the agreement is entered into, file with the Federal Trade Commission or the Assistant Attorney General, as applicable, and the Competition Advocate, information sufficient for the Federal Trade Commission or the United States, as applicable, to assess the competitive impact of the acquisition, including—
“(A) the pricing, availability, and quality of any product or service, or inputs thereto, in any market, that was covered by the agreement;
“(B) the source, and the resulting magnitude and extent, of any cost-saving efficiencies or any benefits to consumers or trading partners that were claimed as a benefit of the acquisition and the extent to which any cost savings were passed on to consumers or trading partners; and
“(C) the effectiveness of any divestitures or any conditions placed on the acquisition in fully restoring competition.
“(2) The requirement to provide the information described in paragraph (1) shall be included in an agreement described in that paragraph.
“(3) The Federal Trade Commission, with the concurrence of the Assistant Attorney General, by rule in accordance with section 553 of title 5, United States Code, and consistent with the purposes of this section—
“(A) shall require that the information described in paragraph (1) be in such form and contain such documentary material and information relevant to an acquisition as is necessary and appropriate to enable the Federal Trade Commission and the Assistant Attorney General to assess the competitive impact of the acquisition under paragraph (1); and
“(B) may—
“(i) define the terms used in this subsection;
“(ii) exempt, from the requirements of this section, information not relevant in assessing the competitive impact of the acquisition under paragraph (1); and
“(iii) prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section.”
“(4) The chief executive officer, chief financial officer, general counsel, or a corporate officer of similar authority shall certify, under penalty of perjury, the accuracy of a report under this subsection.”
Sec. 6 Federal Trade Commission study
In general— Not later than 2 years after the date of enactment of this Act, the Federal Trade Commission, in consultation with the Securities and Exchange Commission, shall conduct and publish a study, pursuant to section 6(b) of the Federal Trade Commission Act, relying on public data and information if available and sufficient, and incorporating public comment on—
the extent to which an institutional investor or related institutional investors have ownership or control interests in competitors in moderately concentrated or concentrated markets;
the impacts of such overlapping ownership or control on competition; and
the mechanisms by which an institutional investor could affect competition among the companies in which it invests and whether such mechanisms are prevalent.
Exemption from Paperwork Reduction Act— Chapter 35 of title 44, United States Code, shall not apply to the collection of information under subsection (a).
Sec. 7 GAO studies
In general— Not later than 18 months after the date of enactment of this Act, the Comptroller General of the United States shall—
conduct and publish a study to assess the success of merger remedies required by the Department of Justice or the Federal Trade Commission in consent decrees entered into during the 8-year period ending on the date on which the study is conducted, including the impact on maintaining competition, a comparison of structural and conduct remedies, and the viability of divested assets; and
conduct a study on the impact of mergers and acquisitions on wages, employment, innovation, and new business formation.
Update— The Comptroller General of the United States shall—
update the study under subsection (a)(1) every 4 years after the date of enactment of this Act, as added by section 5 of this Act; and
identify specific remedies or alleged merger benefits that require additional information or research.
Sec. 8 Office of Competition Advocate
Definitions— In this section—
the term agency has the meaning given that term in section 551 of title 5, United States Code;
the term Chair means the Chair of the Commission;
the term Commission means the Federal Trade Commission;
the term covered company means any company that has, at any time, been required to make a filing under section 7A of the Clayton Act (15 U.S.C. 18a); and
the term Office means the Office of the Competition Advocate established under subsection (b).
Establishment— There is established within the Federal Trade Commission the Office of the Competition Advocate.
Competition Advocate—
In general— The head of the Office shall be the Competition Advocate, who shall—
report directly to, and be under the supervision of, the Chair, but the Chair shall not prevent or prohibit the Competition Advocate from initiating, carrying out, or completing any of its duties under this section;
be appointed by the Chair with the approval of the Commission, including at least 1 Commissioner who is not a member of the same political party as the Chair, from among individuals having experience in advocating for the promotion of competition; and
serve a term of 7 years and shall not be removable except upon a unanimous vote of the Commission.
Compensation— The annual rate of pay for the Competition Advocate shall be equal to the highest rate of annual pay for other senior executives who report to the Chair of the Commission.
Limitation on service— An individual who serves as the Competition Advocate may not be employed by the Commission—
during the 2-year period ending on the date of appointment as Competition Advocate; and
during the 5-year period beginning on the date on which the person ceases to serve as the Competition Advocate.
Staff of Office— The Commission shall allocate funds from the Commission budget to the Office of the Competition Advocate sufficient for the Competition Advocate to retain or employ such counsel, research staff, and service staff necessary to carry out the functions, powers, and duties of the Office.
Duties and powers— The Competition Advocate shall—
recommend processes or procedures that will allow the Federal Trade Commission and the Antitrust Division of the Department of Justice to improve the ability of each agency to solicit reports from consumers, small businesses, and workers about possible anticompetitive practices or adverse effects of concentration;
provide recommendations to other agencies about agency actions that may have anticompetitive effects and the potential harm to competition;
provide recommendations to other agencies about agency actions that may have procompetitive effects and the potential benefit to competition;
publish periodic reports on—
the effects of remedies required by the Department of Justice or the Federal Trade Commission in consent decrees;
the effects of law enforcement actions, whether successful or not, including settlements, preliminary injunctions, court-mandated remedies, or any other remedy imposed by a court or agreed to by the Department of Justice or Federal Trade Commission;
the effects of a decision by the Department of Justice or the Federal Trade Commission to allow any merger or transaction to move forward without a consent decree or bringing a law enforcement action;
the effects of decisions and opinions issues by State and Federal courts related to the antitrust laws on competition and the future enforcement of the antitrust laws; and
the effects of other agency actions, including rulemakings, on competition;
provide recommendations to the Federal Trade Commission and Department of Justice about the effectiveness of policy statements, guidelines, or practices to improve the enforcement of the antitrust laws;
report any evidence the Competition Advocate obtains that any person, partnership, or corporation has engaged in transactions or conduct that may constitute of a violation of the antitrust laws, or any settlement, agreement, or consent decree related to a potential violation of the antitrust laws, to the Commission, which may institute further investigation, initiate enforcement proceedings, or refer such evidence to the Attorney General;
request such information or assistance as may be necessary for carrying out the duties and powers described in this subsection from any agency or unit thereof, including the Commission. The head of any agency shall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the agency from which the information is requested, furnish to the Competition Advocate such information or assistance;
have discretion to decide whether to release the recommendations of the Competition Advocate publicly;
have access to all information and data collected and retained by the Office of Market Analysis and Data; and
submit all recommendations or reports to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives.
Subpoena authority—
In general— The Competition Advocate may either accept voluntary submissions of periodic and other reports from any covered company, or compel the production of such a report by subpoena for the purpose of carrying out its duties and powers in subsection (e).
Independent subpoena authority— Upon a finding that a covered company will not submit, or has not submitted, a sufficient report voluntarily, the Competition Advocate may, under its own independent authority, and notwithstanding any jurisdictional limitations in the Federal Trade Commission Act applicable to the Commission’s investigative authority, compel the submission of a periodic or other reports from any covered company by issuing a subpoena.
Enforcement— The Competition Advocate shall have independent authority to bring an action in any appropriate Federal court to enforce any subpoena issued under this subsection.
Written finding— Before issuing a subpoena to collect the information described in paragraph (1), the Competition Advocate shall make a written finding that—
the data is required to carry out the functions of the Competition Advocate; and
the information is not available from a public source, from the covered company on a voluntary basis, or another agency.
Mitigation of report burden— Before requiring the submission of a report from any covered company, the Competition Advocate shall—
coordinate with other agencies or authority; and
whenever possible, rely on information available from such agencies or authority.
Confidentiality— Information reported to or otherwise obtained by the Competition Advocate shall be subject to the same confidentiality requirements and protection applicable to information reported to or otherwise obtained by the Commission.
Sec. 9 Office of Market Analysis and Data
Establishment— There is established, within the Federal Trade Commission, an Office of Market Analysis and Data.
Duties— The Office of Market Analysis and Data shall, in consultation with the Bureau of Economics, assist the Federal Trade Commission in—
collecting, validating, and maintaining data obtained from agencies, as defined in section 551 of title 5, United States Code, commercial data providers, publicly available data sources, any covered company, and any data obtained by the Commission pursuant to its authority under section 6(b) of the Federal Trade Commission Act (15 U.S.C. 46(b)), for the purpose of carrying out the functions in paragraphs (2) through (6);
preparing and publishing, in a manner that is easily accessible to the public—
a concentration database;
a merger enforcement database; and
any other database that the Commission determines is necessary to carry out the duties of the Office;
collecting and publishing data regarding concentration levels across industries and the impact and degree of antitrust enforcement;
standardizing the types and formats of data reported and collected, including standards for reporting financial transaction and position data;
publishing reports regarding competitive conditions and dynamics affecting markets or industry sectors, in the United States, local geographic markets, different demographic and socioeconomic groups (including the effects that market concentration, mergers and acquisitions, certain types of agreements, and other forms of business conduct have on competition), consumers, workers, innovation, the economic competitiveness of the United States, economic resilience, and national security; and
publishing reports concerning the competitive effects of acquisitions, which shall include recommendations concerning appropriate enforcement action to remedy any anticompetitive effects discovered, and may include assessments of—
the conditions of the relevant markets affected by the acquisition, over the period since the acquisition was consummated, including, but not limited to, the potential impact that the acquisition has had on—
the prices of goods or services, including wages in any affected labor markets;
the output and quality of goods and services;
the entry or exit of competitors;
innovation;
consumer choice and product variety;
the opportunity of suppliers and vendors to sell their products or services;
coordinated interaction between competitors; and
subsequent mergers and acquisitions activity;
whether the acquiring person or its successors in interest—
complied with all obligations under any agreement with the Federal Trade Commission, the United States, or State law enforcement authorities to resolve a proceeding brought under the antitrust laws; and
achieved measurable, transaction-specific efficiencies, which did not arise from anticompetitive reductions of output, as a result of the acquisition; and
whether any agreements with the Federal Trade Commission or the United States or remedies imposed by a Federal court to resolve a proceeding brought under the antitrust laws regarding the acquisition was effective in mitigating the anticompetitive effects from the acquisition.
Information security— The Commission shall ensure that data collected and maintained by the Office of Market Analysis and Data is kept secure and protected against unauthorized disclosure.
Regulations— The Commission may, under section 553 of title 5, United States Code, promulgate regulations relating to the collection and standardizing of data under subsection (b).
Sec. 10 Exclusionary conduct
In general— The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting after section 26 (15 U.S.C. 26a) the following:
“26A. Exclusionary conduct
“(a) Definitions—In this section:
“(1) Exclusionary conduct
“(A) In general—The term exclusionary conduct means conduct that—
“(i) materially disadvantages 1 or more actual or potential competitors; or
“(ii) tends to foreclose or limit the ability or incentive of 1 or more actual or potential competitors to compete.
“(B) Limitations
“(i) In general—Applying for or enforcing a patent, trademark, or copyright, unless such applications or enforcement actions are baseless or made in bad faith or in violation of a legal obligation, shall not alone constitute exclusionary conduct, but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct.
“(ii) Conduct—Conduct that is necessary to comply with Federal or State law shall not alone constitute exclusionary conduct, but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct.
“(2) Market power—The term market power means the ability of a person, or a group of persons acting in concert, to profitably impose terms or conditions on counterparties, including terms regarding price, quantity, product or service quality, or other terms affecting the value of consideration exchanged in the transaction, that are more favorable to the person or group of persons imposing them than what the person or group of persons could obtain in a competitive market.
“(b) Violation
“(1) In general—It shall be unlawful for a person, acting alone or in concert with other persons, to engage in exclusionary conduct that presents an appreciable risk of harming competition.
“(2) Unfair method of competition—A violation of paragraph (1) shall also constitute an unfair method of competition under section 5 of the Federal Trade Commission Act (15 U.S.C. 45).
“(c) Presumption
“(1) In general—Except as provided in paragraph (2), exclusionary conduct shall be presumed to present an appreciable risk of harming competition and shall be a violation of subsection (b)(1) if the exclusionary conduct is undertaken, with respect to a relevant market, by a person or by a group of more than 1 person acting in concert that—
“(A) has a market share of greater than 50 percent as a seller or a buyer in the relevant market; or
“(B) otherwise has significant market power in the relevant market.
“(2) Exception—Paragraph (1) shall not apply if the defendant establishes, by a preponderance of the evidence, that—
“(A) distinct procompetitive benefits of the exclusionary conduct in the relevant market eliminate the risk of harming competition presented by the exclusionary conduct;
“(B) 1 or more persons, not including any person participating in or facilitating the exclusionary conduct, have entered or expanded their presence in the market with the effect of eliminating the risk of harming competition posed by the exclusionary conduct; or
“(C) the exclusionary conduct does not present an appreciable risk of harming competition.
“(d) Considerations—If the presumption in subsection (c) does not apply, the determination of whether exclusionary conduct presents an appreciable risk of harming competition shall be based on the totality of the circumstances, which may include consideration of—
“(1) the extent to which any distinct procompetitive benefits of the exclusionary conduct substantially eliminate the risk of harming competition presented by the exclusionary conduct; and
“(2) whether 1 or more persons, not including any person participating in or facilitating the exclusionary conduct, have entered or expanded their presence in the market, substantially eliminating the risk of harming competition presented by the exclusionary conduct.
“(e) Limitations—Although the following circumstances may constitute evidence of a violation of subsection (b)(1), such violation does not require finding—
“(1) that the unilateral conduct of the defendant altered or terminated a prior course of dealing between the defendant and a person subject to the exclusionary conduct;
“(2) that the defendant treated persons subject to the exclusionary conduct differently than the defendant treated other persons;
“(3) that any price of the defendant for a product or service was below any measure of the costs to the defendant of providing the product or service;
“(4) that a defendant with significant market power in a relevant market has recouped or is likely to recoup the losses it incurred or incurs from below-cost pricing for products or services in the relevant market;
“(5) that the conduct of the defendant makes no economic sense apart from its tendency to harm competition;
“(6) that the risk of harming competition presented by the conduct of the defendant or any resulting actual harm to competition have been quantified or proven with quantitative evidence; or
“(7) that when a defendant operates a multi-sided platform business, the conduct of the defendant presents an appreciable risk of harming competition on more than 1 side of the multi-sided platform.
“(f) Civil penalties—Any person who violates subsection (b)(1) shall be liable to the United States for a civil penalty, which may be recovered in a civil action brought by the Attorney General of the United States, of not more than the greater of—
“(1) 15 percent of the total United States revenues of the person for the previous calendar year; or
“(2) 30 percent of the United States revenues of the person in any line of commerce affected or targeted by the unlawful conduct during the period of the unlawful conduct.”
Federal Trade Commission authority—
In general— The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting after section 26A, as added by subsection (a), the following:
“26B. Civil penalties
“(a) Civil penalty for violation of section 26A of the Clayton Act—The Commission may commence a civil action in a district court of the United States against any person, partnership, or corporation who violates section 26A(b)(1) to recover a civil penalty, which shall accrue to the United States, in an amount not more than the greater of—
“(1) 15 percent of the total United States revenues of the person, partnership, or corporation for the previous calendar year; or
“(2) 30 percent of the United States revenues of the person, partnership, or corporation in any line of commerce affected or targeted by the unlawful conduct during the period of the unlawful conduct.
“(b) Commission litigation authority—Except as otherwise provided in section 16(a)(3) of the Federal Trade Commission Act (15 U.S.C. 56(a)(3)), the Commission shall have exclusive authority to commence or defend, and supervise the litigation of, any civil action authorized under section 26A and any appeal of such action in its own name by any of its attorneys designated by it for such purpose, unless the Commission authorizes the Attorney General to do so. The Commission shall inform the Attorney General of the exercise of such authority, and such exercise shall not preclude the Attorney General from intervening on behalf of the United States in such action and any appeal of such action as may be otherwise provided by law.”
Enforcement guidelines—
In general— Not later than 1 year after the date of enactment of this Act, the Attorney General and the Federal Trade Commission shall issue joint guidelines outlining policies, practices, and analytical techniques relating to agency enforcement under section 26A of the Clayton Act, as added by subsection (a) of this section, with the goal of promoting transparency and deterring violations of such section 26A.
Updates— The Attorney General and the Federal Trade Commission shall update the joint guidelines issued under subsection (a), as needed to reflect current agency policies and practices, but not less frequently than once every 5 years beginning on the date of enactment of this Act.
Public notice and comment—
Guidelines— Before issuing guidelines under paragraph (1) or (2), the Attorney General and the Federal Trade Commission shall publish proposed guidelines in draft form and provide public notice and opportunity for comment for not less than 60 days after the date on which the guidelines are published.
Inapplicability of rulemaking provisions— The provisions of section 553 of title 5, United States Code, shall not apply to the guidelines issued under this section.
Sec. 11 Penalties for Sherman Act violations
Civil penalty amendments—
by striking “Every” and inserting “(a) Every”; and
by adding at the end the following:
“(b)
“(1) Every person who violates this section shall be liable to the United States for a civil or criminal penalty of not more than the greater of—
“(A) 15 percent of the total United States revenues of the person for the previous calendar year; or
“(B) 30 percent of the United States revenues of the person in any part of the trade or commerce related to or targeted by the unlawful conduct under this section during the period of the unlawful conduct.
“(2) A penalty under this section may be recovered in a civil or criminal action brought by the United States.”
by striking “Every” and inserting “(a) Every”; and
by adding at the end the following
“(b)
“(1) Every person who violates this section shall be liable to the United States for a civil penalty of not more than the greater of—
“(A) 15 percent of the total United States revenues of the person for the previous calendar year; or
“(B) 30 percent of the United States revenues of the person in any part of the trade or commerce related to or targeted by the unlawful conduct under this section during the period of the unlawful conduct.
“(2) A civil penalty under this section may be recovered in a civil action brought by the United States.”
Section 5 of the Federal Trade Commission Act— Section 5 of the Federal Trade Commission Act (15 U.S.C. 45) is amended by adding at the end the following:
“(o)
“(1) The Commission may commence a civil action in a district court of the United States against any person, partnership, or corporation for a violation of subsection (a)(1) respecting an unfair method of competition that constitutes a violation of sections 1 or 2 of the Sherman Act (15 U.S.C. 1, 2) and to recover a civil penalty for such violation.
“(2) In an action under paragraph (1), any person, partnership, or corporation found to have violated subsection (a)(1) respecting an unfair method of competition that constitutes a violation of section 1 or 2 of the Sherman Act (15 U.S.C. 1, 2) shall be liable for a civil penalty of not more than the greater of—
“(A) 15 percent of the total United States revenues of the person, partnership, or corporation for the previous calendar year; or
“(B) 30 percent of the United States revenues of the person, partnership, or corporation in any line of commerce related to or targeted by the unlawful conduct described in paragraph (1) during the period of the unlawful conduct.”
Section 16 of the Federal Trade Commission Act— Section 16(a)(2) of the Federal Trade Commission Act (15 U.S.C. 56(a)(2)) is amended—
in subparagraph (D), by striking “or” at the end;
in subparagraph (E)—
by moving the margins 2 ems to the left; and
by striking the semicolon and inserting “; or”; and
by inserting after subparagraph (E) the following:
“(F) to recover civil penalties under section 5(o);”
Rule of construction— The civil penalties provided in subsection (b) of section 1 of the Sherman Act (15 U.S.C. 1), subsection (b) of section 2 of the Sherman Act (15 U.S.C. 2), and subsection (o) of section 5 of the Federal Trade Commission Act (15 U.S.C. 45), as added by subsection (a) of this section, are in addition to, and not in lieu of, any other remedy provided by Federal law, including under—
section 4 or 16 of the Clayton Act (15 U.S.C. 15, 26); or
section 13(b) of the Federal Trade Commission Act (15 U.S.C. 53(b)).
Sec. 12 Joint civil penalty guidelines
In general— Not later than 1 year after the date of enactment of this Act, the Attorney General and the Federal Trade Commission shall issue joint guidelines reflecting agency policies for determining the appropriate amount of a civil penalty to be sought under sections 1(b) and 2(b) of the Sherman Act (15 U.S.C. 1, 2), section 26A(f) of the Clayton Act, as added by section 10(a) of this Act, and section 5(o) of the Federal Trade Commission Act (15 U.S.C. 45), as added by section 11(a) of this Act, with the goal of promoting transparency and seeking remedies for individual violations that are effective in deterring future unlawful conduct and proportionate to the gravity of the violation.
Considerations— In determining civil penalty amounts under sections 1(b) and 2(b) of the Sherman Act (15 U.S.C. 1, 2), section 26A(f) of the Clayton Act, as added by section 10(a) of this Act, and section 5(o) of the Federal Trade Commission Act (15 U.S.C. 45), as added by section 11(a) of this Act, a district court of the United States shall consider—
the volume of commerce affected;
the duration and severity of the unlawful conduct;
the intent of the person undertaking the unlawful conduct;
the extent to which the unlawful conduct was egregious or a clear violation of the law;
whether the civil penalty is to be applied in combination with other remedies, including—
structural remedies, behavioral conditions, or equitable disgorgement; or
other remedies available under section 4, 4A, 15, or 16 of the Clayton Act (15 U.S.C. 15, 15a, 25, 26) or section 13(b) of the Federal Trade Commission Act (15 U.S.C. 53(b));
whether the person has previously engaged in the same or similar anticompetitive conduct;
the extent to which the penalty will act to deter future violations of the antitrust laws; and
whether the person undertook the conduct in violation of a preexisting consent decree or court order.
Updates— The Attorney General and the Federal Trade Commission shall update the joint guidelines issued under subsection (a), as needed to reflect current agency policies and practices, but not less frequently than once every 5 years beginning on the date of enactment of this Act.
Public notice and comment—
Guidelines— Before issuing guidelines under subsection (a) or subsection (c), the Attorney General and the Federal Trade Commission shall publish proposed guidelines in draft form and provide public notice and opportunity for comment for not less than 60 days after the date on which the guidelines are published.
Inapplicability of rulemaking provisions— The provisions of section 553 of title 5, United States Code, shall not apply to the guidelines issued under this section.
Sec. 13 Market definition
In general— Establishing liability under the antitrust laws does not require the definition of a relevant market, except when the definition of a relevant market is required, to establish a presumption or to resolve a claim, under a statutory provision that explicitly references the terms relevant market, market concentration, or market share. Statutory references to the term line of commerce shall not constitute an exception to the foregoing rule that establishing liability under the antitrust laws does not require the definition of a relevant market.
Direct evidence— If direct evidence in the record is sufficient to prove actual or likely harm to competition, an appreciable risk to competition sufficient to satisfy the applicable statutory standard, or that the effect of an acquisition subject to section 7 of the Clayton Act (15 U.S.C. 18) may be to create an appreciable risk of materially lessening competition or to tend to create a monopoly or a monopsony, neither a court nor the Federal Trade Commission shall require definition of a relevant market in order to evaluate the evidence, to find liability, or to find that a claim has been stated under the antitrust laws.
Rule of construction— Nothing in this section may be construed to prevent a court or the Federal Trade Commission from considering evidence relating to the definition of proposed relevant markets to evaluate the merits of a claim under the antitrust laws.
Sec. 14 Limitations on implied immunity from the antitrust laws
In general— In any action or proceeding to enforce the antitrust laws with respect to conduct that is regulated under Federal statute, no court or adjudicatory body may find that the Federal statute, or any rule or regulation promulgated in accordance with the Federal statute, implicitly precludes application of the antitrust laws to the conduct unless—
a Federal agency or department actively regulates the conduct under the Federal statute;
the Federal statute does not include any provision preserving the rights, claims, or remedies under the applicable antitrust laws or under any area of law that includes the antitrust laws; and
Federal agency or department rules or regulations, adopted by rulemaking or adjudication, explicitly require or authorize the defendant to undertake the conduct.
Existing Federal regulation— In any action or proceeding described in subsection (a), the antitrust laws shall be applied fully and without qualification or limitation, and the scope of the antitrust laws shall not be defined more narrowly on account of the existence of Federal rules, regulations, or regulatory agencies or departments, unless application of the antitrust laws is precluded or limited by—
an explicit exemption from the antitrust laws under a Federal statute; or
an implied immunity that satisfies the requirements under subsection (a).
Sec. 15 Whistleblower protections
Protections for civil whistleblowers— The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting after section 27 (15 U.S.C. 26b) the following:
“27A. Anti-retaliation protection for civil whistleblowers
“(a) Whistleblower protections for employees, contractors, subcontractors, and agents
“(1) In general—No employer may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against a covered individual in the terms and conditions of employment of the covered individual because of any lawful act done by the covered individual—
“(A) to provide or cause to be provided to the Federal Government or a person with supervisory authority over the covered individual (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct) information relating to any violation of, or any act or omission the covered individual reasonably believes to be a violation of, the applicable antitrust laws; or
“(B) to cause to be filed, testify in, participate in, or otherwise assist a Federal Government investigation or a Federal Government proceeding filed or about to be filed (with any knowledge of the employer) relating to any violation of, or any act or omission the covered individual reasonably believes to be a violation of, the applicable antitrust laws.
“(2) Limitation on protections—Paragraph (1) shall not apply to any covered individual if—
“(A) the covered individual planned and initiated a violation or attempted violation of the applicable antitrust laws;
“(B) the covered individual planned and initiated a violation or attempted violation of a criminal law in conjunction with a violation or attempted violation of the applicable antitrust laws; or
“(C) the covered individual planned and initiated an obstruction or attempted obstruction of an investigation by the Federal Government of a violation of the applicable antitrust laws.
“(3) Definitions—In this section:
“(A) Applicable antitrust laws—The term applicable antitrust laws means section 1, 2, or 3 of the Sherman Act (15 U.S.C. 1, 2, and 3) or section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent that such section applies to unfair methods of competition.
“(B) Covered individual—The term covered individual means an employee, contractor, subcontractor, or agent of an employer.
“(C) Employer—The term employer means a person, or any officer, employee, contractor, subcontractor, or agent of such person.
“(D) Federal Government—The term Federal Government means—
“(i) a Federal regulatory or law enforcement agency; or
“(ii) any Member of Congress or committee of Congress.
“(E) Person—The term person has the same meaning as in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12(a)).
“(b) Enforcement action
“(1) In general—A covered individual who alleges discharge or other discrimination by any employer in violation of subsection (a) may seek relief under subsection (c) by—
“(A) filing a complaint with the Secretary of Labor; or
“(B) if the Secretary of Labor has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.
“(2) Procedure
“(A) In general—A complaint filed with the Secretary of Labor under paragraph (1)(A) shall be governed under the rules and procedures set forth in section 42121(b) of title 49, United States Code.
“(B) Exception—Notification made under section 42121(b)(1) of title 49, United States Code, shall be made to any individual named in the complaint and to the employer.
“(C) Burdens of proof—An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.
“(D) Statute of limitations—A complaint under paragraph (1)(A) shall be filed with the Secretary of Labor not later than 180 days after the date on which the violation of this section occurs.
“(E) Civil actions to enforce—If a person fails to comply with an order or preliminary order issued by the Secretary of Labor pursuant to the procedures set forth in section 42121(b) of title 49, United States Code, the Secretary of Labor or the person on whose behalf the order was issued may bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.
“(c) Remedies
“(1) In general—A covered individual prevailing in any action under subsection (b)(1) shall be entitled to all relief necessary to make the covered individual whole.
“(2) Compensatory damages—Relief for any action under paragraph (1) shall include—
“(A) reinstatement with the same seniority status that the covered individual would have had, but for the discrimination;
“(B) the amount of back pay, with interest; and
“(C) compensation for any special damages sustained as a result of the discrimination including litigation costs, expert witness fees, and reasonable attorney’s fees.
“(d) Rights retained by whistleblowers—Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any covered individual under any Federal or State law, or under any collective bargaining agreement.”
Whistleblower reward— The Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (15 U.S.C. 1 note) is amended by inserting after section 216 (15 U.S.C. 7a–3) the following:
“217. Criminal antitrust whistleblower incentives
“(a) Definitions—In this section the following definitions shall apply:
“(1) Antitrust laws—The term antitrust laws means section 1 or 3 of the Sherman Act (15 U.S.C. 1 and 3).
“(2) Collected proceeds—The term collected proceeds means any sanctions, fines, penalties, or awards obtained in any covered enforcement action, whether by judgment, settlement, or a deferred prosecution agreement.
“(3) Covered enforcement action—The term covered enforcement action means any criminal action brought by the Attorney General under the antitrust laws that results in collected proceeds exceeding $1,000,000.
“(4) Original information—The term original information means information that—
“(A) is derived from the personal knowledge of a whistleblower;
“(B) is not known to the Attorney General or the Department of Justice from any other source, unless the whistleblower is the original source of the information;
“(C) is not exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless the whistleblower is a source of the information; and
“(D) is not already required to be disclosed to the Department of Justice or another Federal agency.
“(5) Related action—The term related action, when used with respect to any covered enforcement action brought by the Attorney General, means any criminal action brought by another United States entity that is based upon the original information provided by a whistleblower that led to the successful enforcement action by the Attorney General.
“(6) Whistleblower—The term whistleblower means any individual who provides information relating to a violation of the antitrust laws to the Department of Justice, in a manner established by the Department of Justice.
“(b) Awards
“(1) In general—In a covered enforcement action, or related action, the Attorney General, subject to subsection (c), may pay an award or awards to a whistleblower who voluntarily provided original information to the Department of Justice that led to the successful enforcement of the covered enforcement action, or related action, in an amount not less than 10 percent and not more than 30 percent, in total, of what has been collected of the criminal fine imposed in the covered enforcement action or related action under the antitrust laws;
“(2) Payment—Any amount paid under paragraph (1) shall be paid from the criminal fine collected in the covered enforcement action.
“(c) Determination of amount of award; denial of award
“(1) Determination of amount of award
“(A) Discretion—The determination of the amount of an award made under subsection (b) shall be in the discretion of the Attorney General.
“(B) Criteria—In determining the amount of an award made under subsection (b), the Attorney General shall take into consideration—
“(i) the significance of the information provided by the whistleblower to the success of the covered enforcement action;
“(ii) the degree of assistance and cooperation provided by the whistleblower in a covered enforcement action;
“(iii) the interest of the Department of Justice in deterring criminal violations of the antitrust laws by making awards to whistleblowers who provide information that leads to the successful covered enforcement actions; and
“(iv) such additional relevant factors as the Attorney General may establish.
“(2) Denial of award—No award under subsection (b) shall be made—
“(A) to any whistleblower who is, or was at the time the whistleblower who acquired the original information submitted to the Commission, a member, officer, or employee of—
“(i) any branch, agency, or instrumentality of the Federal Government; or
“(ii) any law enforcement organization;
“(B) to any whistleblower who is convicted of a criminal violation related to the covered enforcement action for which the whistleblower otherwise could receive an award under this section;
“(C) to any whistleblower who was an originator or leader of or who coerced any other party to participate in the activity giving rise to liability under the antitrust laws in the covered enforcement action for which the whistleblower otherwise could receive an award under this section;
“(D) to any whistleblower who fails to respond to provide timely, truthful, continuing, and complete cooperation to the Department of Justice relating to the original information or intentionally withholds information relating to the original information;
“(E) to any whistleblower who commits, participates in, or attempts to commit or participate in any crimes after disclosing the original information to the Department of Justice;
“(F) to any whistleblower who fails to submit information to the Department of Justice in such form as the Department may require, or failed to report relevant information to the Department known to the whistleblower when the whistleblower first reported the information to the Department;
“(G) to any whistleblower who fails to submit information to the Department of Justice in such form as the Department may require as prescribed by regulation;
“(H) to any whistleblower who planned and initiated an obstruction or attempted obstruction of an investigation by the Department of Justice of a violation of the antitrust laws; or
“(I) to any whistleblower who engages in conduct that would disqualify the whistleblower if the whistleblower were a leniency applicant under the Leniency Program of the Antitrust Division.
“(d) Representation—Any whistleblower who makes a claim for an award under subsection (b) may be represented by counsel.
“(e) Appeals—Any determination made under this section, including whether, to whom, or in what amount to make awards, shall be in the discretion of the Attorney General. Any such determination, except the determination of the amount of an award if the award was made in accordance with subsection (b), may be appealed to the appropriate court of appeals of the United States not more than 30 days after the determination is issued by the Attorney General. The court shall review the determination made by the Attorney General in accordance with section 706 of title 5, United States Code.”
Sec. 16 Prejudgment interest
Section 4 of the Clayton Act (15 U.S.C. 15) is amended by striking subsection (a) and inserting the following:
“(a) Except as provided in subsection (b), any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, the cost of suit, including a reasonable attorney’s fee, and simple interest on threefold the damages by him sustained for the period beginning on the date of service of such person’s pleading setting forth a claim under the antitrust laws and ending on the date of judgment.”
Sec. 17 No forced arbitration for antitrust disputes
In general— Title 9, United States Code, is amended by adding at the end the following:
“5 Arbitration antitrust disputes
“501. Definitions
“In this chapter—
“(1) the term antitrust dispute means a dispute—
“(A) arising from an alleged violation of the antitrust laws (as defined in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12(a))) or State antitrust laws; and
“(B) in which the plaintiffs seek certification as a class under rule 23 of the Federal Rules of Civil Procedure or a comparable rule or provision of State law;
“(2) the term predispute arbitration agreement means an agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement; and
“(3) the term predispute joint-action waiver means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.
“502. No validity or enforceability
“(a) In general—Notwithstanding any other provision of this title, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to an antitrust dispute.
“(b) Applicability—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”
Technical and conforming amendments—
In general— Title 9 of the United States Code is amended—
in section 2, by inserting “or 5” before the period at the end;
in section 208, by inserting “or 5” before the period at the end; and
in section 307, by inserting “or 5” before the period at the end.
Table of chapters— The table of chapters for title 9, United States Code, is amended by adding at the end the following:
Sec. 18 Additional remedies; rules of construction
Additional remedies— The rights and remedies provided under this Act are in addition to, not in lieu of, any other rights and remedies provided by Federal law, including under section 4, 4A, 15, or 16 of the Clayton Act (15 U.S.C. 15, 15a, 25, 26) or section 13(b) of the Federal Trade Commission Act (15 U.S.C. 53(b)).
Rules of construction— Nothing in this Act may be construed to—
impair or limit the applicability of any of the antitrust laws; and
prohibit any other remedy provided by Federal law.
Sec. 19 Authorization of appropriations
Fiscal year 2025— There is authorized to be appropriated for fiscal year 2025—
$535,000,000 for the Antitrust Division of the Department of Justice; and
$725,000,000 for the Federal Trade Commission.
Subsequent years— Beginning in fiscal year 2026, and each fiscal year thereafter, all premerger notification filing fees collected pursuant to section 7A of the Clayton Act (15 U.S.C. 18a) shall—
be retained and used for expenses necessary for the enforcement of antitrust and kindred laws by the Antitrust Division of the Department of Justice and the Federal Trade Commission, to remain available until expended; and
shall be treated as direct spending described in section 250(c)(8)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 900(c)(8)(A)).