II 

116TH CONGRESS 

2D SESSION S. 4013 

To prohibit certain transactions during the coronavirus disease 2019 

(COVID–19) pandemic. 

IN THE SENATE OF THE UNITED STATES 

JUNE 18, 2020 

Ms. WARREN (for herself and Mr. SANDERS) introduced the following bill; 

which was read twice and referred to the Committee on Commerce, 

Science, and Transportation 

A BILL 

To prohibit certain transactions during the coronavirus 

disease 2019 (COVID–19) pandemic. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Pandemic Anti-Monop5 oly Act’’. 

6 SEC. 2. MORATORIUM ON CERTAIN MERGERS AND ACQUISI7 TIONS. 

8 (a) IN GENERAL.—Except as provided in subsection 

9 (b), during the period beginning on the date of enactment 

10 of this Act and ending on the date on which the Federal 


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1 Trade Commission votes unanimously under subsection 

2 (c), the following transactions are prohibited: 

3 (1) Acquisitions by firms with over 

4 $100,000,000 in revenue. 

5 (2) Acquisitions by financial institutions or eq6 uity funds with over $100,000,000 in capitalization. 

7 (3) Acquisitions by firms that are registered in8 vestment advisers under section 203 of the Invest9 ment Advisers Act of 1940 (15 U.S.C. 80b–3) or by 

10 firms that are majority-owned by a firm that is a 

11 registered investment adviser under that section. 

12 (4) Acquisitions involving firms with exclusive 

13 patent pertaining to coronavirus disease 2019 

14 (COVID–19) pandemic-related production, manufac15 turing, distribution, or infrastructure, medical sup16 plies, equipment, facilities, or services, and drug re17 search, development, production, supply, reserves, or 

18 distribution. 

19 (5) Any other acquisition required to be re20 ported under section 7A of the Clayton Act (15 

21 U.S.C. 18a). 

22 (6) Does not include an acquisition that is a 

23 transaction described in paragraph (1), (2), (3), (4), 

24 (5), (9), or (10) of section 7A(c) of the Clayton Act 

25 (15 U.S.C. 18a(c)). 


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1 (b) WAIVER.— 

2 (1) IN GENERAL.—Firms participating in any 

3 transaction described in subsection (a) may petition 

4 the Federal Trade Commission for a waiver by pre5 senting clear and convincing evidence that the trans6 action will advance critical national security, eco7 nomic, or public health interests during the emer8 gency. 

9 (2) FAILING FIRM.—The acquisition of a failing 

10 firm shall be considered to advance critical economic 

11 interests and shall be deemed to meet the criteria 

12 for a waiver under paragraph (1). A firm shall be 

13 deemed failing if the Commission concludes that— 

14 (A) the firm would be unable to meet the 

15 financial obligations of the firm in the near fu16 ture, having established that the resources of 

17 the firm are so depleted and the prospect of re18 habilitation so remote that the firm faces the 

19 grave probability of a business failure; 

20 (B) the probability of the firm successfully 

21 reorganizing under chapter 11 of title 11, 

22 United States Code, is dim or nonexistent; and 

23 (C) the firm has demonstrated that the 

24 firm made good faith efforts to elicit reasonable 

25 alternative offers that would keep assets of the 


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1 firm in the market and pose a less severe dan2 ger to competition than does the proposed ac3 quisition. 

4 (3) VOTE.—The Federal Trade Commission, by 

5 unanimous Commission vote and with the written 

6 concurrence of the Attorney General, the Secretary 

7 of Defense, the Secretary of Homeland Security, the 

8 Secretary of Labor, the Secretary of Health and 

9 Human Services, and the Administrator of the Small 

10 Business Administration may grant a petition under 

11 paragraph (1) if the Commission determines that 

12 the transaction will advance critical national secu13 rity, economic, or public health interests during the 

14 emergency. 

15 (4) EXPLANATION.—Upon granting a petition 

16 under this subsection, the Federal Trade Commis17 sion shall publish in the Federal Register and on the 

18 website of the Commission the rationale for granting 

19 the petition. 

20 (c) TERMINATION OF MORATORIUM.— 

21 (1) IN GENERAL.—The prohibition in sub22 section (a) shall not apply only if the Federal Trade 

23 Commission unanimously determines, with the writ24 ten consent of the Attorney General, the Secretary 

25 of Labor, and the Administrator of the Small BusiVerDate Sep 11 2014 22:18 Jul 03, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4013.IS S4013

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1 ness Administration, that the prohibition should no 

2 longer apply. 

3 (2) INITIAL DETERMINATION.—The Federal 

4 Trade Commission may only hold a vote under para5 graph (1) after— 

6 (A) the national emergency under the Na7 tional Emergencies Act (50 U.S.C. 1601 et 

8 seq.) with respect to the coronavirus disease 

9 2019 (COVID–19) has terminated; 

10 (B) each State of the United States, the 

11 District of Columbia, any territory of the 

12 United States, Puerto Rico, Guam, American 

13 Samoa, the Virgin Islands, and the Northern 

14 Mariana Islands have reopened their economies; 

15 (C) the 100-day period ending on the later 

16 of the date on which subparagraph (A) or (B) 

17 has been satisfied expires; and 

18 (D) the Commission determines that small 

19 businesses and workers are no longer under se20 vere financial distress. 

21 (d) TOLLING.—During the period beginning on the 

22 date of enactment of this Act and ending on the date on 

23 which the Federal Trade Commission votes under sub24 section (c)(1) to remove the prohibition under subsection 

25 (a), any waiting period or deadline required under section 


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1 7A of the Clayton Act (15 U.S.C. 18a) shall be automati2 cally tolled. 

3 (e) PENALTIES.—Any firm attempting a prohibited 

4 transaction under this section shall be subject to an order 

5 blocking or reversing the transaction and a penalty of not 

6 less than 10 percent of the revenue of the firm for fiscal 

7 year 2019. 

8 (f) RESILIENCY RULEMAKING.— 

9 (1) IN GENERAL.—There shall be a legal pre10 sumption against a transaction that may pose a risk 

11 to the Government’s ability to respond to a national 

12 emergency, including— 

13 (A) a transaction that may reduce, restrict, 

14 curtail, or otherwise undermine the ability of 

15 the Government to invent, develop, improve, 

16 produce, procure, stockpile, or otherwise make 

17 available goods and services that are life-saving 

18 or otherwise essential to the Government’s abil19 ity to address the coronavirus disease 2019 

20 (COVID–19) pandemic or other potential public 

21 health, safety, or other emergencies; 

22 (B) a transaction that may reduce, limit, 

23 curtail, or otherwise create a disincentive for re24 search, development, or production of goods or 

25 services described in subparagraph (A); and 


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1 (C) a transaction by a firm under contract 

2 within the last 5 years with the Federal Gov3 ernment regarding any goods or services de4 scribed in subparagraph (A). 

5 (2) BURDEN.—If a firm seeks to complete a 

6 transaction described in paragraph (1), that firm 

7 shall have the burden of showing by clear and con8 vincing evidence that the transaction does not pose 

9 a risk to the Government’s ability to respond to a 

10 national emergency. 

11 (3) RULEMAKING.—Not later than 1 year after 

12 the date of enactment of this Act, the Federal Trade 

13 Commission shall promulgate regulations to further 

14 define— 

15 (A) transactions that fall under paragraph 

16 (1)(A); 

17 (B) transactions that fall under paragraph 

18 (1)(B); 

19 (C) companies that fall under paragraph 

20 (1)(C); and 

21 (D) specific goods and services that are 

22 life-saving or otherwise essential to the Govern23 ment’s ability to address the coronavirus dis24 ease 2019 (COVID–19) pandemic or other poVerDate Sep 11 2014 22:18 Jul 03, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4013.IS S4013

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1 tential public health, safety, or other emer2 gencies. 

Æ 


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