II 

118TH CONGRESS 

2D SESSION S. 4308 

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. 

IN THE SENATE OF THE UNITED STATES 

MAY 9, 2024 

Ms. KLOBUCHAR (for herself, Mr. BLUMENTHAL, Mr. WHITEHOUSE, Ms. 

HIRONO, Mr. BOOKER, Mr. WELCH, Mr. WARNER, Mr. WYDEN, Mr. 

HEINRICH, Mr. MARKEY, Mr. SCHATZ, and Ms. SMITH) introduced the 

following bill; which was read twice and referred to the Committee on the 

Judiciary 

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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Competition and Anti3 trust Law Enforcement Reform Act of 2024’’. 

4 SEC. 2. FINDINGS AND PURPOSES. 

5 (a) FINDINGS.—Congress finds that— 

6 (1) competitive markets, in which multiple 

7 firms compete to buy and sell products and services, 

8 are critical to ensuring economic opportunity for all 

9 people in the United States and providing resilience 

10 to the economy during unpredictable times; 

11 (2) when companies compete, businesses offer 

12 the highest quality and choice of goods and services 

13 for the lowest possible prices to consumers and other 

14 businesses; 

15 (3) competition fosters small business growth, 

16 reduces economic inequality, and spurs innovation 

17 and job creation; 

18 (4) competitive markets are crucial for the 

19 United States global economic competitiveness and 

20 national security; 

21 (5) in the United States economy today, the 

22 presence and exercise of market power is substantial 

23 and growing; 

24 (6) the presence and exercise of market power 

25 makes it more difficult for people in the United 

26 States to start their own businesses, depresses 


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1 wages, and increases economic inequality, with par2 ticularly damaging effects on historically disadvan3 taged communities; 

4 (7) market power and undue market concentra5 tion contribute to the consolidation of political 

6 power, undermining the health of democracy in the 

7 United States; 

8 (8) the anticompetitive effects of monopoly 

9 power or buyer market power include higher prices, 

10 lower quality, lessened choice, reduced innovation, 

11 foreclosure of competitors, and increased entry bar12 riers; 

13 (9) monopsony power or seller market power al14 lows a firm to force suppliers of goods or services to 

15 accept below market prices or to force workers to ac16 cept below market wages, resulting in lower quality 

17 products and services, reduced opportunities for sup18 pliers and workers, reduced availability of products 

19 and services for consumers, reduced innovation, fore20 closure of competitors, and increased entry barriers; 

21 (10) horizontal consolidation, vertical consolida22 tion, and conglomerate mergers all have the poten23 tial to increase market power and cause anticompeti24 tive harm; 


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1 (11) extensive consolidation is reducing com2 petition and threatens to place the American dream 

3 further out of reach for many consumers in the 

4 United States; 

5 (12) since 2008, firms in the United States 

6 have engaged in over $10,000,000,000,000 in merg7 ers and acquisitions; 

8 (13) the acquisition of nascent or potential ri9 vals by dominant firms can present significant long10 term threats to competition and innovation and 

11 harm the global economic competitiveness of the 

12 United States; 

13 (14) the acquisition, by one of its competitors, 

14 of a maverick firm that plays a disruptive role in the 

15 market, by using an innovative business model or 

16 technology, offering lower prices or new, different 

17 products or services products, or by other means 

18 that benefit consumers, often presents a threat to 

19 competition; 

20 (15) section 7 of the Clayton Act (15 U.S.C. 

21 18) is the primary line of defense against anti22 competitive mergers; 

23 (16) in recent years, some court decisions and 

24 enforcement policies have limited the vitality of the 

25 Clayton Act to prevent harmful consolidation by— 


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1 (A) discounting previously accepted pre2 sumptions that certain acquisitions are anti3 competitive; 

4 (B) focusing inordinately on the effect of 

5 an acquisition on price in the short term, to the 

6 exclusion of other potential anticompetitive ef7 fects; 

8 (C) underestimating the dangers that hori9 zontal, vertical, and conglomerate mergers will 

10 lower quality, reduce choice, impede innovation, 

11 exclude competitors, increase entry barriers, or 

12 create buyer power, including monopsony 

13 power; 

14 (D) failing to properly account for direct 

15 evidence of competitive harm, including intent 

16 evidence; and 

17 (E) requiring the government to prove 

18 harmful effects of a proposed merger to a near 

19 certainty; 

20 (17) anticompetitive exclusionary conduct con21 stitutes a particularly harmful exercise of market 

22 power and a substantial threat to the United States 

23 economy; 

24 (18) when dominant sellers exercise market 

25 power, they harm buyers by overcharging them, reVerDate Sep 11 2014 19:26 Jun 14, 2024 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4308.IS S4308

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1 ducing product or service quality, limiting their 

2 choices, and impairing innovation; 

3 (19) when dominant buyers exercise market 

4 power, they harm suppliers by underpaying them, 

5 limiting their business opportunities, and impairing 

6 innovation; 

7 (20) when dominant employers exercise market 

8 power, they harm workers by paying them low 

9 wages, reducing their benefits, and limiting their fu10 ture employment opportunities; 

11 (21) nascent or potential rivals, even those that 

12 are unprofitable or inefficient, are an important 

13 source of competitive discipline for dominant firms; 

14 (22) antitrust enforcement against anticompeti15 tive exclusionary conduct has been impeded when 

16 courts have declined to rigorously examine the facts 

17 in favor of relying on inaccurate economic assump18 tions that are inconsistent with contemporary eco19 nomic learning, such as presuming that market 

20 power is not durable and can be expected to self-cor21 rect, that monopolies can drive as much or more in22 novation than a competitive market, that above-cost 

23 pricing cannot harm competition, and other flawed 

24 assumptions; 


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1 (23) the courts of the United States have im2 properly implied immunity from the antitrust laws 

3 based on Federal regulatory statutes, even limiting 

4 the application of statutory antitrust savings clauses 

5 passed by Congress; 

6 (24) the civil remedies currently available to 

7 cure violations of the Sherman Antitrust Act, includ8 ing injunctions, equitable monetary relief, and pri9 vate damages, have not proven sufficient, on their 

10 own, to deter anticompetitive conduct; 

11 (25) in some cases, effective deterrence requires 

12 the imposition of civil penalties, alone or in combina13 tion with existing remedies, including structural re14 lief, behavioral relief, private damages, and equitable 

15 monetary relief, including disgorgement and restitu16 tion; and 

17 (26) Federal antitrust enforcement budgets 

18 have failed to keep pace with the growth of the econ19 omy and increasing demands on agency resources, 

20 significantly undermining the ability of the Federal 

21 antitrust agencies to fulfill their law enforcement 

22 missions and contributing to the rise of market 

23 power in the American economy. 

24 (b) PURPOSES.—The purposes of this Act are to— 


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1 (1) enhance competition throughout the Amer2 ican economy by strengthening antitrust enforce3 ment by the Department of Justice, the Federal 

4 Trade Commission, the State enforcement agencies, 

5 and private parties; 

6 (2) revise the legal standard under section 7 of 

7 the Clayton Act to better enable enforcers to arrest 

8 the likely anticompetitive effects of harmful mergers 

9 in their incipiency, as Congress intended, by clari10 fying that the potential effects that may justify pro11 hibiting a merger under the Clayton Act include 

12 lower quality, reduced choice, reduced innovation, 

13 the exclusion of competitors, or increased entry bar14 riers, in addition to increased price to buyers or re15 duced price to sellers; 

16 (3) amend the Clayton Act to clarify that an 

17 acquisition that tends to create a monopsony violates 

18 the Clayton Act; 

19 (4) establish simple, cost-effective decision rules 

20 that require the parties to certain acquisitions that 

21 either significantly increase concentration or are ex22 tremely large bear the burden of establishing that 

23 the acquisition will not materially harm competition; 

24 (5) prohibit and deter exclusionary conduct that 

25 harms competition, particularly by dominant firms; 


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1 (6) enable the Department of Justice and the 

2 Federal Trade Commission to seek civil monetary 

3 penalties, in addition to existing remedies, for viola4 tions of the Sherman Act; 

5 (7) give the Department of Justice and the 

6 Federal Trade Commission additional financial re7 sources and enforcement tools to craft remedies for 

8 individual violations that are effective to deter future 

9 unlawful conduct and proportionate to the gravity of 

10 the violation; 

11 (8) provide further protections for those who 

12 provide evidence of anticompetitive conduct to gov13 ernment enforcers and potential financial rewards 

14 for whistleblowers who provide information to the 

15 government that leads to a criminal fine; and 

16 (9) grant successful antitrust plaintiffs the 

17 right to obtain prejudgment interest on damages 

18 awards to further deter anticompetitive conduct and 

19 increase compensation to injured parties. 

20 SEC. 3. DEFINITION. 

21 In this Act the term ‘‘antitrust laws’’— 

22 (1) has the meaning given that term in the first 

23 section of the Clayton Act (15 U.S.C. 12); and 

24 (2) includes— 


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1 (A) section 5 of the Federal Trade Com2 mission Act (15 U.S.C. 45) to the extent that 

3 such section applies to unfair methods of com4 petition; and 

5 (B) this Act and the amendments made by 

6 this Act. 

7 SEC. 4. UNLAWFUL ACQUISITIONS. 

8 (a) MARKET POWER.—Subsection (a) of the first sec9 tion of the Clayton Act (15 U.S.C. 12) is amended by add10 ing at the end the following: 

11 ‘‘The term ‘market power’ in this Act means the abil12 ity of a person, or a group of persons acting in concert, 

13 to profitably impose terms or conditions on counterparties, 

14 including terms regarding price, quantity, product or serv15 ice quality, or other terms affecting the value of consider16 ation exchanged in the transaction, that are more favor17 able to the person or group of persons imposing them than 

18 what the person or group of persons could obtain in a com19 petitive market.’’. 

20 (b) UNLAWFUL ACQUISITIONS.—Section 7 of the 

21 Clayton Act (15 U.S.C. 18) is amended— 

22 (1) in the first and second undesignated para23 graphs, by striking ‘‘substantially to lessen’’ each 

24 place that term appears and inserting ‘‘to create an 

25 appreciable risk of materially lessening’’; 


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1 (2) by inserting ‘‘or a monopsony’’ after ‘‘mo2 nopoly’’ each place that term appears; and 

3 (3) by adding at the end the following: 

4 ‘‘In a case brought by the United States, the Federal 

5 Trade Commission, or a State attorney general, a court 

6 shall determine that the effect of an acquisition described 

7 in this section may be to create an appreciable risk of ma8 terially lessening competition or to tend to create a monop9 oly or a monopsony, in or affecting commerce, if— 

10 ‘‘(1) the acquisition would lead to a significant 

11 increase in market concentration in any relevant 

12 market; 

13 ‘‘(2) the acquisition would increase the ability 

14 and incentive to engage in exclusionary conduct, as 

15 defined in section 26A of the Clayton Act; 

16 ‘‘(3)(A) the acquiring person has a market 

17 share of greater than 50 percent or otherwise has 

18 significant market power, as a seller or a buyer, in 

19 any relevant market, and as a result of the acquisi20 tion, the acquiring person would obtain control over 

21 entities or assets that compete or have a reasonable 

22 probability of competing with the acquiring person 

23 in the same relevant market; or 

24 ‘‘(B) as a result of the acquisition, the acquir25 ing person would obtain control over entities or asVerDate Sep 11 2014 19:26 Jun 14, 2024 Jkt 049200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4308.IS S4308

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1 sets that have a market share of greater than 50 

2 percent or otherwise have significant market power, 

3 as a seller or a buyer, in any relevant market, and 

4 the acquiring person competes or has a reasonable 

5 probability of competing with the entities or assets 

6 over which it would obtain control, as a result of the 

7 acquisition, in the same relevant market; 

8 ‘‘(4) the acquisition would lead to the combina9 tion of entities or assets that compete or have a rea10 sonable probability of competing in a relevant mar11 ket, and either the acquiring person or the entities 

12 or assets over which it would obtain control pre13 vents, limits, or disrupts coordinated interaction 

14 among competitors in a relevant market or has a 

15 reasonable probability of doing so; 

16 ‘‘(5) the acquisition— 

17 ‘‘(A) would likely enable the acquiring per18 son to unilaterally and profitably exercise mar19 ket power or materially increase its ability to do 

20 so; or 

21 ‘‘(B) would materially increase the prob22 ability of coordinated interaction among com23 petitors in any relevant market; or 

24 ‘‘(6)(A) the acquisition is not a transaction that 

25 is described in section 7A(c); and 


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1 ‘‘(B)(i) as a result of such acquisition, the ac2 quiring person would hold an aggregate total 

3 amount of the voting securities and assets of the ac4 quired person in excess of $5,000,000,000 (as ad5 justed and published for each fiscal year beginning 

6 after September 30, 2024, in the same manner as 

7 provided in section 8(a)(5) to reflect the percentage 

8 change in the gross national product for such fiscal 

9 year compared to the gross national product for the 

10 year ending September 30, 2023; or 

11 ‘‘(ii)(I) the person acquiring or the person being 

12 acquired has assets, net annual sales, or a market 

13 capitalization greater than $100,000,000,000 (as so 

14 adjusted and published); and 

15 ‘‘(II) as a result of such acquisition, the acquir16 ing person would hold an aggregate total amount of 

17 the voting securities and assets of the acquired per18 son in excess of $50,000,000 (as so adjusted and 

19 published), unless the acquiring or acquired person 

20 establishes, by a preponderance of the evidence, that 

21 the effect of the acquisition will not be to create an 

22 appreciable risk of materially lessening competition 

23 or will not tend to create a monopoly or a monop24 sony. In this paragraph, the term ‘materially’ means 

25 more than a de minimis amount’’. 


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1 SEC. 5. POST-PROCEEDING DATA. 

2 Section 7A of the Clayton Act (15 U.S.C. 18a) is 

3 amended by adding at the end the following: 

4 ‘‘(l)(1) Each person who resolves a proceeding 

5 brought under the antitrust laws by the Federal Trade 

6 Commission or United States by entering into an agree7 ment or by the final judgment in a Federal or administra8 tive court regarding an acquisition with respect to which 

9 notification is required under this section shall, on an an10 nual basis during the 5-year period beginning on the date 

11 on which the agreement is entered into, file with the Fed12 eral Trade Commission or the Assistant Attorney General, 

13 as applicable, and the Competition Advocate, information 

14 sufficient for the Federal Trade Commission or the United 

15 States, as applicable, to assess the competitive impact of 

16 the acquisition, including— 

17 ‘‘(A) the pricing, availability, and quality of any 

18 product or service, or inputs thereto, in any market, 

19 that was covered by the agreement; 

20 ‘‘(B) the source, and the resulting magnitude 

21 and extent, of any cost-saving efficiencies or any 

22 benefits to consumers or trading partners that were 

23 claimed as a benefit of the acquisition and the extent 

24 to which any cost savings were passed on to con25 sumers or trading partners; and 


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1 ‘‘(C) the effectiveness of any divestitures or any 

2 conditions placed on the acquisition in fully restoring 

3 competition. 

4 ‘‘(2) The requirement to provide the information de5 scribed in paragraph (1) shall be included in an agreement 

6 described in that paragraph. 

7 ‘‘(3) The Federal Trade Commission, with the con8 currence of the Assistant Attorney General, by rule in ac9 cordance with section 553 of title 5, United States Code, 

10 and consistent with the purposes of this section— 

11 ‘‘(A) shall require that the information de12 scribed in paragraph (1) be in such form and con13 tain such documentary material and information rel14 evant to an acquisition as is necessary and appro15 priate to enable the Federal Trade Commission and 

16 the Assistant Attorney General to assess the com17 petitive impact of the acquisition under paragraph 

18 (1); and 

19 ‘‘(B) may— 

20 ‘‘(i) define the terms used in this sub21 section; 

22 ‘‘(ii) exempt, from the requirements of this 

23 section, information not relevant in assessing 

24 the competitive impact of the acquisition under 

25 paragraph (1); and 


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1 ‘‘(iii) prescribe such other rules as may be 

2 necessary and appropriate to carry out the pur3 poses of this section.’’. 

4 ‘‘(4) The chief executive officer, chief financial offi5 cer, general counsel, or a corporate officer of similar au6 thority shall certify, under penalty of perjury, the accuracy 

7 of a report under this subsection.’’. 

8 SEC. 6. FEDERAL TRADE COMMISSION STUDY. 

9 (a) IN GENERAL.—Not later than 2 years after the 

10 date of enactment of this Act, the Federal Trade Commis11 sion, in consultation with the Securities and Exchange 

12 Commission, shall conduct and publish a study, pursuant 

13 to section 6(b) of the Federal Trade Commission Act, rely14 ing on public data and information if available and suffi15 cient, and incorporating public comment on— 

16 (1) the extent to which an institutional investor 

17 or related institutional investors have ownership or 

18 control interests in competitors in moderately con19 centrated or concentrated markets; 

20 (2) the impacts of such overlapping ownership 

21 or control on competition; and 

22 (3) the mechanisms by which an institutional 

23 investor could affect competition among the compa24 nies in which it invests and whether such mecha25 nisms are prevalent. 


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1 (b) EXEMPTION FROM PAPERWORK REDUCTION

2 ACT.—Chapter 35 of title 44, United States Code, shall 

3 not apply to the collection of information under subsection 

4 (a). 

5 SEC. 7. GAO STUDIES. 

6 (a) IN GENERAL.—Not later than 18 months after 

7 the date of enactment of this Act, the Comptroller General 

8 of the United States shall— 

9 (1) conduct and publish a study to assess the 

10 success of merger remedies required by the Depart11 ment of Justice or the Federal Trade Commission in 

12 consent decrees entered into during the 8-year pe13 riod ending on the date on which the study is con14 ducted, including the impact on maintaining com15 petition, a comparison of structural and conduct 

16 remedies, and the viability of divested assets; and 

17 (2) conduct a study on the impact of mergers 

18 and acquisitions on wages, employment, innovation, 

19 and new business formation. 

20 (b) UPDATE.—The Comptroller General of the 

21 United States shall— 

22 (1) update the study under subsection (a)(1) 

23 every 4 years after the date of enactment of this 

24 Act, as added by section 5 of this Act; and 


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1 (2) identify specific remedies or alleged merger 

2 benefits that require additional information or re3 search. 

4 SEC. 8. OFFICE OF COMPETITION ADVOCATE. 

5 (a) DEFINITIONS.—In this section— 

6 (1) the term ‘‘agency’’ has the meaning given 

7 that term in section 551 of title 5, United States 

8 Code; 

9 (2) the term ‘‘Chair’’ means the Chair of the 

10 Commission; 

11 (3) the term ‘‘Commission’’ means the Federal 

12 Trade Commission; 

13 (4) the term ‘‘covered company’’ means any 

14 company that has, at any time, been required to 

15 make a filing under section 7A of the Clayton Act 

16 (15 U.S.C. 18a); and 

17 (5) the term ‘‘Office’’ means the Office of the 

18 Competition Advocate established under subsection 

19 (b). 

20 (b) ESTABLISHMENT.—There is established within 

21 the Federal Trade Commission the Office of the Competi22 tion Advocate. 

23 (c) COMPETITION ADVOCATE.— 

24 (1) IN GENERAL.—The head of the Office shall 

25 be the Competition Advocate, who shall— 


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1 (A) report directly to, and be under the su2 pervision of, the Chair, but the Chair shall not 

3 prevent or prohibit the Competition Advocate 

4 from initiating, carrying out, or completing any 

5 of its duties under this section; 

6 (B) be appointed by the Chair with the ap7 proval of the Commission, including at least 1 

8 Commissioner who is not a member of the same 

9 political party as the Chair, from among indi10 viduals having experience in advocating for the 

11 promotion of competition; and 

12 (C) serve a term of 7 years and shall not 

13 be removable except upon a unanimous vote of 

14 the Commission. 

15 (2) COMPENSATION.—The annual rate of pay 

16 for the Competition Advocate shall be equal to the 

17 highest rate of annual pay for other senior execu18 tives who report to the Chair of the Commission. 

19 (3) LIMITATION ON SERVICE.—An individual 

20 who serves as the Competition Advocate may not be 

21 employed by the Commission— 

22 (A) during the 2-year period ending on the 

23 date of appointment as Competition Advocate; 

24 and 


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1 (B) during the 5-year period beginning on 

2 the date on which the person ceases to serve as 

3 the Competition Advocate. 

4 (d) STAFF OF OFFICE.—The Commission shall allo5 cate funds from the Commission budget to the Office of 

6 the Competition Advocate sufficient for the Competition 

7 Advocate to retain or employ such counsel, research staff, 

8 and service staff necessary to carry out the functions, pow9 ers, and duties of the Office. 

10 (e) DUTIES AND POWERS.—The Competition Advo11 cate shall— 

12 (1) recommend processes or procedures that 

13 will allow the Federal Trade Commission and the 

14 Antitrust Division of the Department of Justice to 

15 improve the ability of each agency to solicit reports 

16 from consumers, small businesses, and workers 

17 about possible anticompetitive practices or adverse 

18 effects of concentration; 

19 (2) provide recommendations to other agencies 

20 about agency actions that may have anticompetitive 

21 effects and the potential harm to competition; 

22 (3) provide recommendations to other agencies 

23 about agency actions that may have procompetitive 

24 effects and the potential benefit to competition; 

25 (4) publish periodic reports on— 


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1 (A) the effects of remedies required by the 

2 Department of Justice or the Federal Trade 

3 Commission in consent decrees; 

4 (B) the effects of law enforcement actions, 

5 whether successful or not, including settle6 ments, preliminary injunctions, court-mandated 

7 remedies, or any other remedy imposed by a 

8 court or agreed to by the Department of Justice 

9 or Federal Trade Commission; 

10 (C) the effects of a decision by the Depart11 ment of Justice or the Federal Trade Commis12 sion to allow any merger or transaction to move 

13 forward without a consent decree or bringing a 

14 law enforcement action; 

15 (D) the effects of decisions and opinions 

16 issues by State and Federal courts related to 

17 the antitrust laws on competition and the fu18 ture enforcement of the antitrust laws; and 

19 (E) the effects of other agency actions, in20 cluding rulemakings, on competition; 

21 (5) provide recommendations to the Federal 

22 Trade Commission and Department of Justice about 

23 the effectiveness of policy statements, guidelines, or 

24 practices to improve the enforcement of the antitrust 

25 laws; 


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1 (6) report any evidence the Competition Advo2 cate obtains that any person, partnership, or cor3 poration has engaged in transactions or conduct that 

4 may constitute of a violation of the antitrust laws, 

5 or any settlement, agreement, or consent decree re6 lated to a potential violation of the antitrust laws, to 

7 the Commission, which may institute further inves8 tigation, initiate enforcement proceedings, or refer 

9 such evidence to the Attorney General; 

10 (7) request such information or assistance as 

11 may be necessary for carrying out the duties and 

12 powers described in this subsection from any agency 

13 or unit thereof, including the Commission. The head 

14 of any agency shall, insofar as is practicable and not 

15 in contravention of any existing statutory restriction 

16 or regulation of the agency from which the informa17 tion is requested, furnish to the Competition Advo18 cate such information or assistance; 

19 (8) have discretion to decide whether to release 

20 the recommendations of the Competition Advocate 

21 publicly; 

22 (9) have access to all information and data col23 lected and retained by the Office of Market Analysis 

24 and Data; and 


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1 (10) submit all recommendations or reports to 

2 the Committee on the Judiciary of the Senate and 

3 the Committee on the Judiciary of the House of 

4 Representatives. 

5 (f) SUBPOENA AUTHORITY.— 

6 (1) IN GENERAL.—The Competition Advocate 

7 may either accept voluntary submissions of periodic 

8 and other reports from any covered company, or 

9 compel the production of such a report by subpoena 

10 for the purpose of carrying out its duties and powers 

11 in subsection (e). 

12 (2) INDEPENDENT SUBPOENA AUTHORITY.— 

13 Upon a finding that a covered company will not sub14 mit, or has not submitted, a sufficient report volun15 tarily, the Competition Advocate may, under its own 

16 independent authority, and notwithstanding any ju17 risdictional limitations in the Federal Trade Com18 mission Act applicable to the Commission’s inves19 tigative authority, compel the submission of a peri20 odic or other reports from any covered company by 

21 issuing a subpoena. 

22 (3) ENFORCEMENT.—The Competition Advo23 cate shall have independent authority to bring an ac24 tion in any appropriate Federal court to enforce any 

25 subpoena issued under this subsection. 


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1 (4) WRITTEN FINDING.—Before issuing a sub2 poena to collect the information described in para3 graph (1), the Competition Advocate shall make a 

4 written finding that— 

5 (A) the data is required to carry out the 

6 functions of the Competition Advocate; and 

7 (B) the information is not available from a 

8 public source, from the covered company on a 

9 voluntary basis, or another agency. 

10 (5) MITIGATION OF REPORT BURDEN.—Before 

11 requiring the submission of a report from any cov12 ered company, the Competition Advocate shall— 

13 (A) coordinate with other agencies or au14 thority; and 

15 (B) whenever possible, rely on information 

16 available from such agencies or authority. 

17 (6) CONFIDENTIALITY.—Information reported 

18 to or otherwise obtained by the Competition Advo19 cate shall be subject to the same confidentiality re20 quirements and protection applicable to information 

21 reported to or otherwise obtained by the Commis22 sion. 


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1 SEC. 9. OFFICE OF MARKET ANALYSIS AND DATA. 

2 (a) ESTABLISHMENT.—There is established, within 

3 the Federal Trade Commission, an Office of Market Anal4 ysis and Data. 

5 (b) DUTIES.—The Office of Market Analysis and 

6 Data shall, in consultation with the Bureau of Economics, 

7 assist the Federal Trade Commission in— 

8 (1) collecting, validating, and maintaining data 

9 obtained from agencies, as defined in section 551 of 

10 title 5, United States Code, commercial data pro11 viders, publicly available data sources, any covered 

12 company, and any data obtained by the Commission 

13 pursuant to its authority under section 6(b) of the 

14 Federal Trade Commission Act (15 U.S.C. 46(b)), 

15 for the purpose of carrying out the functions in 

16 paragraphs (2) through (6); 

17 (2) preparing and publishing, in a manner that 

18 is easily accessible to the public— 

19 (A) a concentration database; 

20 (B) a merger enforcement database; and 

21 (C) any other database that the Commis22 sion determines is necessary to carry out the 

23 duties of the Office; 

24 (3) collecting and publishing data regarding 

25 concentration levels across industries and the impact 

26 and degree of antitrust enforcement; 


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1 (4) standardizing the types and formats of data 

2 reported and collected, including standards for re3 porting financial transaction and position data; 

4 (5) publishing reports regarding competitive 

5 conditions and dynamics affecting markets or indus6 try sectors, in the United States, local geographic 

7 markets, different demographic and socioeconomic 

8 groups (including the effects that market concentra9 tion, mergers and acquisitions, certain types of 

10 agreements, and other forms of business conduct 

11 have on competition), consumers, workers, innova12 tion, the economic competitiveness of the United 

13 States, economic resilience, and national security; 

14 and 

15 (6) publishing reports concerning the competi16 tive effects of acquisitions, which shall include rec17 ommendations concerning appropriate enforcement 

18 action to remedy any anticompetitive effects discov19 ered, and may include assessments of— 

20 (A) the conditions of the relevant markets 

21 affected by the acquisition, over the period since 

22 the acquisition was consummated, including, 

23 but not limited to, the potential impact that the 

24 acquisition has had on— 


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1 (i) the prices of goods or services, in2 cluding wages in any affected labor mar3 kets; 

4 (ii) the output and quality of goods 

5 and services; 

6 (iii) the entry or exit of competitors; 

7 (iv) innovation; 

8 (v) consumer choice and product vari9 ety; 

10 (vi) the opportunity of suppliers and 

11 vendors to sell their products or services; 

12 (vii) coordinated interaction between 

13 competitors; and 

14 (viii) subsequent mergers and acquisi15 tions activity; 

16 (B) whether the acquiring person or its 

17 successors in interest— 

18 (i) complied with all obligations under 

19 any agreement with the Federal Trade 

20 Commission, the United States, or State 

21 law enforcement authorities to resolve a 

22 proceeding brought under the antitrust 

23 laws; and 

24 (ii) achieved measurable, transaction25 specific efficiencies, which did not arise 


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1 from anticompetitive reductions of output, 

2 as a result of the acquisition; and 

3 (C) whether any agreements with the Fed4 eral Trade Commission or the United States or 

5 remedies imposed by a Federal court to resolve 

6 a proceeding brought under the antitrust laws 

7 regarding the acquisition was effective in miti8 gating the anticompetitive effects from the ac9 quisition. 

10 (c) INFORMATION SECURITY.—The Commission shall 

11 ensure that data collected and maintained by the Office 

12 of Market Analysis and Data is kept secure and protected 

13 against unauthorized disclosure. 

14 (d) REGULATIONS.—The Commission may, under 

15 section 553 of title 5, United States Code, promulgate reg16 ulations relating to the collection and standardizing of 

17 data under subsection (b). 

18 SEC. 10. EXCLUSIONARY CONDUCT. 

19 (a) IN GENERAL.—The Clayton Act (15 U.S.C. 12 

20 et seq.) is amended by inserting after section 26 (15 

21 U.S.C. 26a) the following: 

22 ‘‘SEC. 26A. EXCLUSIONARY CONDUCT. 

23 ‘‘(a) DEFINITIONS.—In this section: 

24 ‘‘(1) EXCLUSIONARY CONDUCT.— 


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1 ‘‘(A) IN GENERAL.—The term ‘exclu2 sionary conduct’ means conduct that— 

3 ‘‘(i) materially disadvantages 1 or 

4 more actual or potential competitors; or 

5 ‘‘(ii) tends to foreclose or limit the 

6 ability or incentive of 1 or more actual or 

7 potential competitors to compete. 

8 ‘‘(B) LIMITATIONS.— 

9 ‘‘(i) IN GENERAL.—Applying for or 

10 enforcing a patent, trademark, or copy11 right, unless such applications or enforce12 ment actions are baseless or made in bad 

13 faith or in violation of a legal obligation, 

14 shall not alone constitute exclusionary con15 duct, but such actions may be considered 

16 as part of a course of conduct that con17 stitutes exclusionary conduct. 

18 ‘‘(ii) CONDUCT.—Conduct that is nec19 essary to comply with Federal or State law 

20 shall not alone constitute exclusionary con21 duct, but such actions may be considered 

22 as part of a course of conduct that con23 stitutes exclusionary conduct. 

24 ‘‘(2) MARKET POWER.—The term ‘market 

25 power’ means the ability of a person, or a group of 


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1 persons acting in concert, to profitably impose terms 

2 or conditions on counterparties, including terms re3 garding price, quantity, product or service quality, 

4 or other terms affecting the value of consideration 

5 exchanged in the transaction, that are more favor6 able to the person or group of persons imposing 

7 them than what the person or group of persons 

8 could obtain in a competitive market. 

9 ‘‘(b) VIOLATION.— 

10 ‘‘(1) IN GENERAL.—It shall be unlawful for a 

11 person, acting alone or in concert with other per12 sons, to engage in exclusionary conduct that pre13 sents an appreciable risk of harming competition. 

14 ‘‘(2) UNFAIR METHOD OF COMPETITION.—A 

15 violation of paragraph (1) shall also constitute an 

16 unfair method of competition under section 5 of the 

17 Federal Trade Commission Act (15 U.S.C. 45). 

18 ‘‘(c) PRESUMPTION.— 

19 ‘‘(1) IN GENERAL.—Except as provided in para20 graph (2), exclusionary conduct shall be presumed to 

21 present an appreciable risk of harming competition 

22 and shall be a violation of subsection (b)(1) if the 

23 exclusionary conduct is undertaken, with respect to 

24 a relevant market, by a person or by a group of 

25 more than 1 person acting in concert that— 


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1 ‘‘(A) has a market share of greater than 

2 50 percent as a seller or a buyer in the relevant 

3 market; or 

4 ‘‘(B) otherwise has significant market 

5 power in the relevant market. 

6 ‘‘(2) EXCEPTION.—Paragraph (1) shall not 

7 apply if the defendant establishes, by a preponder8 ance of the evidence, that— 

9 ‘‘(A) distinct procompetitive benefits of the 

10 exclusionary conduct in the relevant market 

11 eliminate the risk of harming competition pre12 sented by the exclusionary conduct; 

13 ‘‘(B) 1 or more persons, not including any 

14 person participating in or facilitating the exclu15 sionary conduct, have entered or expanded their 

16 presence in the market with the effect of elimi17 nating the risk of harming competition posed by 

18 the exclusionary conduct; or 

19 ‘‘(C) the exclusionary conduct does not 

20 present an appreciable risk of harming competi21 tion. 

22 ‘‘(d) CONSIDERATIONS.—If the presumption in sub23 section (c) does not apply, the determination of whether 

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1 ing competition shall be based on the totality of the cir2 cumstances, which may include consideration of— 

3 ‘‘(1) the extent to which any distinct procom4 petitive benefits of the exclusionary conduct substan5 tially eliminate the risk of harming competition pre6 sented by the exclusionary conduct; and 

7 ‘‘(2) whether 1 or more persons, not including 

8 any person participating in or facilitating the exclu9 sionary conduct, have entered or expanded their 

10 presence in the market, substantially eliminating the 

11 risk of harming competition presented by the exclu12 sionary conduct. 

13 ‘‘(e) LIMITATIONS.—Although the following cir14 cumstances may constitute evidence of a violation of sub15 section (b)(1), such violation does not require finding— 

16 ‘‘(1) that the unilateral conduct of the defend17 ant altered or terminated a prior course of dealing 

18 between the defendant and a person subject to the 

19 exclusionary conduct; 

20 ‘‘(2) that the defendant treated persons subject 

21 to the exclusionary conduct differently than the de22 fendant treated other persons; 

23 ‘‘(3) that any price of the defendant for a prod24 uct or service was below any measure of the costs 

25 to the defendant of providing the product or service; 


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1 ‘‘(4) that a defendant with significant market 

2 power in a relevant market has recouped or is likely 

3 to recoup the losses it incurred or incurs from below4 cost pricing for products or services in the relevant 

5 market; 

6 ‘‘(5) that the conduct of the defendant makes 

7 no economic sense apart from its tendency to harm 

8 competition; 

9 ‘‘(6) that the risk of harming competition pre10 sented by the conduct of the defendant or any re11 sulting actual harm to competition have been quan12 tified or proven with quantitative evidence; or 

13 ‘‘(7) that when a defendant operates a multi14 sided platform business, the conduct of the defend15 ant presents an appreciable risk of harming competi16 tion on more than 1 side of the multi-sided platform. 

17 ‘‘(f) CIVIL PENALTIES.—Any person who violates 

18 subsection (b)(1) shall be liable to the United States for 

19 a civil penalty, which may be recovered in a civil action 

20 brought by the Attorney General of the United States, of 

21 not more than the greater of— 

22 ‘‘(1) 15 percent of the total United States reve23 nues of the person for the previous calendar year; or 

24 ‘‘(2) 30 percent of the United States revenues 

25 of the person in any line of commerce affected or 


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1 targeted by the unlawful conduct during the period 

2 of the unlawful conduct.’’. 

3 (b) FEDERAL TRADE COMMISSION AUTHORITY.— 

4 (1) IN GENERAL.—The Clayton Act (15 U.S.C. 

5 12 et seq.) is amended by inserting after section 

6 26A, as added by subsection (a), the following: 

7 ‘‘SEC. 26B. CIVIL PENALTIES. 

8 ‘‘(a) CIVIL PENALTY FOR VIOLATION OF SECTION

9 26A OF THE CLAYTON ACT.—The Commission may com10 mence a civil action in a district court of the United States 

11 against any person, partnership, or corporation who vio12 lates section 26A(b)(1) to recover a civil penalty, which 

13 shall accrue to the United States, in an amount not more 

14 than the greater of— 

15 ‘‘(1) 15 percent of the total United States reve16 nues of the person, partnership, or corporation for 

17 the previous calendar year; or 

18 ‘‘(2) 30 percent of the United States revenues 

19 of the person, partnership, or corporation in any line 

20 of commerce affected or targeted by the unlawful 

21 conduct during the period of the unlawful conduct. 

22 ‘‘(b) COMMISSION LITIGATION AUTHORITY.—Except 

23 as otherwise provided in section 16(a)(3) of the Federal 

24 Trade Commission Act (15 U.S.C. 56(a)(3)), the Commis25 sion shall have exclusive authority to commence or defend, 


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1 and supervise the litigation of, any civil action authorized 

2 under section 26A and any appeal of such action in its 

3 own name by any of its attorneys designated by it for such 

4 purpose, unless the Commission authorizes the Attorney 

5 General to do so. The Commission shall inform the Attor6 ney General of the exercise of such authority, and such 

7 exercise shall not preclude the Attorney General from in8 tervening on behalf of the United States in such action 

9 and any appeal of such action as may be otherwise pro10 vided by law.’’. 

11 (c) ENFORCEMENT GUIDELINES.— 

12 (1) IN GENERAL.—Not later than 1 year after 

13 the date of enactment of this Act, the Attorney Gen14 eral and the Federal Trade Commission shall issue 

15 joint guidelines outlining policies, practices, and ana16 lytical techniques relating to agency enforcement 

17 under section 26A of the Clayton Act, as added by 

18 subsection (a) of this section, with the goal of pro19 moting transparency and deterring violations of such 

20 section 26A. 

21 (2) UPDATES.—The Attorney General and the 

22 Federal Trade Commission shall update the joint 

23 guidelines issued under subsection (a), as needed to 

24 reflect current agency policies and practices, but not 


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1 less frequently than once every 5 years beginning on 

2 the date of enactment of this Act. 

3 (3) PUBLIC NOTICE AND COMMENT.— 

4 (A) GUIDELINES.—Before issuing guide5 lines under paragraph (1) or (2), the Attorney 

6 General and the Federal Trade Commission 

7 shall publish proposed guidelines in draft form 

8 and provide public notice and opportunity for 

9 comment for not less than 60 days after the 

10 date on which the guidelines are published. 

11 (B) INAPPLICABILITY OF RULEMAKING

12 PROVISIONS.—The provisions of section 553 of 

13 title 5, United States Code, shall not apply to 

14 the guidelines issued under this section. 

15 SEC. 11. PENALTIES FOR SHERMAN ACT VIOLATIONS. 

16 (a) CIVIL PENALTY AMENDMENTS.— 

17 (1) SECTION 1 OF THE SHERMAN ACT.—Section 

18 1 of the Sherman Antitrust Act (15 U.S.C. 1) is 

19 amended— 

20 (A) by striking ‘‘Every’’ and inserting ‘‘(a) 

21 Every’’; and 

22 (B) by adding at the end the following: 

23 ‘‘(b)(1) Every person who violates this section shall 

24 be liable to the United States for a civil or criminal penalty 

25 of not more than the greater of— 


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1 ‘‘(A) 15 percent of the total United States reve2 nues of the person for the previous calendar year; or 

3 ‘‘(B) 30 percent of the United States revenues 

4 of the person in any part of the trade or commerce 

5 related to or targeted by the unlawful conduct under 

6 this section during the period of the unlawful con7 duct. 

8 ‘‘(2) A penalty under this section may be recovered 

9 in a civil or criminal action brought by the United 

10 States.’’. 

11 (2) SECTION 2 OF THE SHERMAN ACT.—Section 

12 2 of the Sherman Antitrust Act (15 U.S.C. 2) is 

13 amended— 

14 (A) by striking ‘‘Every’’ and inserting ‘‘(a) 

15 Every’’; and 

16 (B) by adding at the end the following 

17 ‘‘(b)(1) Every person who violates this section shall 

18 be liable to the United States for a civil penalty of not 

19 more than the greater of— 

20 ‘‘(A) 15 percent of the total United States reve21 nues of the person for the previous calendar year; or 

22 ‘‘(B) 30 percent of the United States revenues 

23 of the person in any part of the trade or commerce 

24 related to or targeted by the unlawful conduct under 


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1 this section during the period of the unlawful con2 duct. 

3 ‘‘(2) A civil penalty under this section may be recov4 ered in a civil action brought by the United States.’’. 

5 (3) SECTION 5 OF THE FEDERAL TRADE COM6 MISSION ACT.—Section 5 of the Federal Trade Com7 mission Act (15 U.S.C. 45) is amended by adding at 

8 the end the following: 

9 ‘‘(o)(1) The Commission may commence a civil action 

10 in a district court of the United States against any person, 

11 partnership, or corporation for a violation of subsection 

12 (a)(1) respecting an unfair method of competition that 

13 constitutes a violation of sections 1 or 2 of the Sherman 

14 Act (15 U.S.C. 1, 2) and to recover a civil penalty for 

15 such violation. 

16 ‘‘(2) In an action under paragraph (1), any person, 

17 partnership, or corporation found to have violated sub18 section (a)(1) respecting an unfair method of competition 

19 that constitutes a violation of section 1 or 2 of the Sher20 man Act (15 U.S.C. 1, 2) shall be liable for a civil penalty 

21 of not more than the greater of— 

22 ‘‘(A) 15 percent of the total United States reve23 nues of the person, partnership, or corporation for 

24 the previous calendar year; or 


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1 ‘‘(B) 30 percent of the United States revenues 

2 of the person, partnership, or corporation in any line 

3 of commerce related to or targeted by the unlawful 

4 conduct described in paragraph (1) during the pe5 riod of the unlawful conduct.’’. 

6 (4) SECTION 16 OF THE FEDERAL TRADE COM7 MISSION ACT.—Section 16(a)(2) of the Federal 

8 Trade Commission Act (15 U.S.C. 56(a)(2)) is 

9 amended— 

10 (A) in subparagraph (D), by striking ‘‘or’’ 

11 at the end; 

12 (B) in subparagraph (E)— 

13 (i) by moving the margins 2 ems to 

14 the left; and 

15 (ii) by striking the semicolon and in16 serting ‘‘; or’’; and 

17 (C) by inserting after subparagraph (E) 

18 the following: 

19 ‘‘(F) to recover civil penalties under section 

20 5(o);’’. 

21 (b) RULE OF CONSTRUCTION.—The civil penalties 

22 provided in subsection (b) of section 1 of the Sherman 

23 Act (15 U.S.C. 1), subsection (b) of section 2 of the Sher24 man Act (15 U.S.C. 2), and subsection (o) of section 5 

25 of the Federal Trade Commission Act (15 U.S.C. 45), as 


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1 added by subsection (a) of this section, are in addition 

2 to, and not in lieu of, any other remedy provided by Fed3 eral law, including under— 

4 (1) section 4 or 16 of the Clayton Act (15 

5 U.S.C. 15, 26); or 

6 (2) section 13(b) of the Federal Trade Commis7 sion Act (15 U.S.C. 53(b)). 

8 SEC. 12. JOINT CIVIL PENALTY GUIDELINES. 

9 (a) IN GENERAL.—Not later than 1 year after the 

10 date of enactment of this Act, the Attorney General and 

11 the Federal Trade Commission shall issue joint guidelines 

12 reflecting agency policies for determining the appropriate 

13 amount of a civil penalty to be sought under sections 1(b) 

14 and 2(b) of the Sherman Act (15 U.S.C. 1, 2), section 

15 26A(f) of the Clayton Act, as added by section 10(a) of 

16 this Act, and section 5(o) of the Federal Trade Commis17 sion Act (15 U.S.C. 45), as added by section 11(a) of this 

18 Act, with the goal of promoting transparency and seeking 

19 remedies for individual violations that are effective in de20 terring future unlawful conduct and proportionate to the 

21 gravity of the violation. 

22 (b) CONSIDERATIONS.—In determining civil penalty 

23 amounts under sections 1(b) and 2(b) of the Sherman Act 

24 (15 U.S.C. 1, 2), section 26A(f) of the Clayton Act, as 

25 added by section 10(a) of this Act, and section 5(o) of 


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1 the Federal Trade Commission Act (15 U.S.C. 45), as 

2 added by section 11(a) of this Act, a district court of the 

3 United States shall consider— 

4 (1) the volume of commerce affected; 

5 (2) the duration and severity of the unlawful 

6 conduct; 

7 (3) the intent of the person undertaking the un8 lawful conduct; 

9 (4) the extent to which the unlawful conduct 

10 was egregious or a clear violation of the law; 

11 (5) whether the civil penalty is to be applied in 

12 combination with other remedies, including— 

13 (A) structural remedies, behavioral condi14 tions, or equitable disgorgement; or 

15 (B) other remedies available under section 

16 4, 4A, 15, or 16 of the Clayton Act (15 U.S.C. 

17 15, 15a, 25, 26) or section 13(b) of the Federal 

18 Trade Commission Act (15 U.S.C. 53(b)); 

19 (6) whether the person has previously engaged 

20 in the same or similar anticompetitive conduct; 

21 (7) the extent to which the penalty will act to 

22 deter future violations of the antitrust laws; and 

23 (8) whether the person undertook the conduct 

24 in violation of a preexisting consent decree or court 

25 order. 


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1 (c) UPDATES.—The Attorney General and the Fed2 eral Trade Commission shall update the joint guidelines 

3 issued under subsection (a), as needed to reflect current 

4 agency policies and practices, but not less frequently than 

5 once every 5 years beginning on the date of enactment 

6 of this Act. 

7 (d) PUBLIC NOTICE AND COMMENT.— 

8 (1) GUIDELINES.—Before issuing guidelines 

9 under subsection (a) or subsection (c), the Attorney 

10 General and the Federal Trade Commission shall 

11 publish proposed guidelines in draft form and pro12 vide public notice and opportunity for comment for 

13 not less than 60 days after the date on which the 

14 guidelines are published. 

15 (2) INAPPLICABILITY OF RULEMAKING PROVI16 SIONS.—The provisions of section 553 of title 5, 

17 United States Code, shall not apply to the guidelines 

18 issued under this section. 

19 SEC. 13. MARKET DEFINITION. 

20 (a) IN GENERAL.—Establishing liability under the 

21 antitrust laws does not require the definition of a relevant 

22 market, except when the definition of a relevant market 

23 is required, to establish a presumption or to resolve a 

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1 tion’’, or ‘‘market share’’. Statutory references to the term 

2 ‘‘line of commerce’’ shall not constitute an exception to 

3 the foregoing rule that establishing liability under the 

4 antitrust laws does not require the definition of a relevant 

5 market. 

6 (b) DIRECT EVIDENCE.—If direct evidence in the 

7 record is sufficient to prove actual or likely harm to com8 petition, an appreciable risk to competition sufficient to 

9 satisfy the applicable statutory standard, or that the effect 

10 of an acquisition subject to section 7 of the Clayton Act 

11 (15 U.S.C. 18) may be to create an appreciable risk of 

12 materially lessening competition or to tend to create a mo13 nopoly or a monopsony, neither a court nor the Federal 

14 Trade Commission shall require definition of a relevant 

15 market in order to evaluate the evidence, to find liability, 

16 or to find that a claim has been stated under the antitrust 

17 laws. 

18 (c) RULE OF CONSTRUCTION.—Nothing in this sec19 tion may be construed to prevent a court or the Federal 

20 Trade Commission from considering evidence relating to 

21 the definition of proposed relevant markets to evaluate the 

22 merits of a claim under the antitrust laws. 


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1 SEC. 14. LIMITATIONS ON IMPLIED IMMUNITY FROM THE 

2 ANTITRUST LAWS. 

3 (a) IN GENERAL.—In any action or proceeding to en4 force the antitrust laws with respect to conduct that is 

5 regulated under Federal statute, no court or adjudicatory 

6 body may find that the Federal statute, or any rule or 

7 regulation promulgated in accordance with the Federal 

8 statute, implicitly precludes application of the antitrust 

9 laws to the conduct unless— 

10 (1) a Federal agency or department actively 

11 regulates the conduct under the Federal statute; 

12 (2) the Federal statute does not include any 

13 provision preserving the rights, claims, or remedies 

14 under the applicable antitrust laws or under any 

15 area of law that includes the antitrust laws; and 

16 (3) Federal agency or department rules or regu17 lations, adopted by rulemaking or adjudication, ex18 plicitly require or authorize the defendant to under19 take the conduct. 

20 (b) EXISTING FEDERAL REGULATION.—In any ac21 tion or proceeding described in subsection (a), the anti22 trust laws shall be applied fully and without qualification 

23 or limitation, and the scope of the antitrust laws shall not 

24 be defined more narrowly on account of the existence of 

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1 partments, unless application of the antitrust laws is pre2 cluded or limited by— 

3 (1) an explicit exemption from the antitrust 

4 laws under a Federal statute; or 

5 (2) an implied immunity that satisfies the re6 quirements under subsection (a). 

7 SEC. 15. WHISTLEBLOWER PROTECTIONS. 

8 (a) PROTECTIONS FOR CIVIL WHISTLEBLOWERS.— 

9 The Clayton Act (15 U.S.C. 12 et seq.) is amended by 

10 inserting after section 27 (15 U.S.C. 26b) the following: 

11 ‘‘SEC. 27A. ANTI-RETALIATION PROTECTION FOR CIVIL 

12 WHISTLEBLOWERS. 

13 ‘‘(a) WHISTLEBLOWER PROTECTIONS FOR EMPLOY14 EES, CONTRACTORS, SUBCONTRACTORS, AND AGENTS.— 

15 ‘‘(1) IN GENERAL.—No employer may dis16 charge, demote, suspend, threaten, harass, or in any 

17 other manner discriminate against a covered indi18 vidual in the terms and conditions of employment of 

19 the covered individual because of any lawful act done 

20 by the covered individual— 

21 ‘‘(A) to provide or cause to be provided to 

22 the Federal Government or a person with su23 pervisory authority over the covered individual 

24 (or such other person working for the employer 

25 who has the authority to investigate, discover, 


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1 or terminate misconduct) information relating 

2 to any violation of, or any act or omission the 

3 covered individual reasonably believes to be a 

4 violation of, the applicable antitrust laws; or 

5 ‘‘(B) to cause to be filed, testify in, partici6 pate in, or otherwise assist a Federal Govern7 ment investigation or a Federal Government 

8 proceeding filed or about to be filed (with any 

9 knowledge of the employer) relating to any vio10 lation of, or any act or omission the covered in11 dividual reasonably believes to be a violation of, 

12 the applicable antitrust laws. 

13 ‘‘(2) LIMITATION ON PROTECTIONS.—Para14 graph (1) shall not apply to any covered individual 

15 if— 

16 ‘‘(A) the covered individual planned and 

17 initiated a violation or attempted violation of 

18 the applicable antitrust laws; 

19 ‘‘(B) the covered individual planned and 

20 initiated a violation or attempted violation of a 

21 criminal law in conjunction with a violation or 

22 attempted violation of the applicable antitrust 

23 laws; or 

24 ‘‘(C) the covered individual planned and 

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1 tion of an investigation by the Federal Govern2 ment of a violation of the applicable antitrust 

3 laws. 

4 ‘‘(3) DEFINITIONS.—In this section: 

5 ‘‘(A) APPLICABLE ANTITRUST LAWS.—The 

6 term ‘applicable antitrust laws’ means section 

7 1, 2, or 3 of the Sherman Act (15 U.S.C. 1, 2, 

8 and 3) or section 5 of the Federal Trade Com9 mission Act (15 U.S.C. 45) to the extent that 

10 such section applies to unfair methods of com11 petition. 

12 ‘‘(B) COVERED INDIVIDUAL.—The term 

13 ‘covered individual’ means an employee, con14 tractor, subcontractor, or agent of an employer. 

15 ‘‘(C) EMPLOYER.—The term ‘employer’ 

16 means a person, or any officer, employee, con17 tractor, subcontractor, or agent of such person. 

18 ‘‘(D) FEDERAL GOVERNMENT.—The term 

19 ‘Federal Government’ means— 

20 ‘‘(i) a Federal regulatory or law en21 forcement agency; or 

22 ‘‘(ii) any Member of Congress or com23 mittee of Congress. 


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1 ‘‘(E) PERSON.—The term ‘person’ has the 

2 same meaning as in subsection (a) of the first 

3 section of the Clayton Act (15 U.S.C. 12(a)). 

4 ‘‘(b) ENFORCEMENT ACTION.— 

5 ‘‘(1) IN GENERAL.—A covered individual who 

6 alleges discharge or other discrimination by any em7 ployer in violation of subsection (a) may seek relief 

8 under subsection (c) by— 

9 ‘‘(A) filing a complaint with the Secretary 

10 of Labor; or 

11 ‘‘(B) if the Secretary of Labor has not 

12 issued a final decision within 180 days of the 

13 filing of the complaint and there is no showing 

14 that such delay is due to the bad faith of the 

15 claimant, bringing an action at law or equity 

16 for de novo review in the appropriate district 

17 court of the United States, which shall have ju18 risdiction over such an action without regard to 

19 the amount in controversy. 

20 ‘‘(2) PROCEDURE.— 

21 ‘‘(A) IN GENERAL.—A complaint filed with 

22 the Secretary of Labor under paragraph (1)(A) 

23 shall be governed under the rules and proce24 dures set forth in section 42121(b) of title 49, 

25 United States Code. 


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1 ‘‘(B) EXCEPTION.—Notification made 

2 under section 42121(b)(1) of title 49, United 

3 States Code, shall be made to any individual 

4 named in the complaint and to the employer. 

5 ‘‘(C) BURDENS OF PROOF.—An action 

6 brought under paragraph (1)(B) shall be gov7 erned by the legal burdens of proof set forth in 

8 section 42121(b) of title 49, United States 

9 Code. 

10 ‘‘(D) STATUTE OF LIMITATIONS.—A com11 plaint under paragraph (1)(A) shall be filed 

12 with the Secretary of Labor not later than 180 

13 days after the date on which the violation of 

14 this section occurs. 

15 ‘‘(E) CIVIL ACTIONS TO ENFORCE.—If a 

16 person fails to comply with an order or prelimi17 nary order issued by the Secretary of Labor 

18 pursuant to the procedures set forth in section 

19 42121(b) of title 49, United States Code, the 

20 Secretary of Labor or the person on whose be21 half the order was issued may bring a civil ac22 tion to enforce the order in the district court of 

23 the United States for the judicial district in 

24 which the violation occurred. 

25 ‘‘(c) REMEDIES.— 


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1 ‘‘(1) IN GENERAL.—A covered individual pre2 vailing in any action under subsection (b)(1) shall be 

3 entitled to all relief necessary to make the covered 

4 individual whole. 

5 ‘‘(2) COMPENSATORY DAMAGES.—Relief for any 

6 action under paragraph (1) shall include— 

7 ‘‘(A) reinstatement with the same seniority 

8 status that the covered individual would have 

9 had, but for the discrimination; 

10 ‘‘(B) the amount of back pay, with inter11 est; and 

12 ‘‘(C) compensation for any special damages 

13 sustained as a result of the discrimination in14 cluding litigation costs, expert witness fees, and 

15 reasonable attorney’s fees. 

16 ‘‘(d) RIGHTS RETAINED BY WHISTLEBLOWERS.— 

17 Nothing in this section shall be deemed to diminish the 

18 rights, privileges, or remedies of any covered individual 

19 under any Federal or State law, or under any collective 

20 bargaining agreement.’’. 

21 (b) WHISTLEBLOWER REWARD.—The Antitrust 

22 Criminal Penalty Enhancement and Reform Act of 2004 

23 (15 U.S.C. 1 note) is amended by inserting after section 

24 216 (15 U.S.C. 7a–3) the following: 


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1 ‘‘SEC. 217. CRIMINAL ANTITRUST WHISTLEBLOWER INCEN2 TIVES. 

3 ‘‘(a) DEFINITIONS.—In this section the following 

4 definitions shall apply: 

5 ‘‘(1) ANTITRUST LAWS.—The term ‘antitrust 

6 laws’ means section 1 or 3 of the Sherman Act (15 

7 U.S.C. 1 and 3). 

8 ‘‘(2) COLLECTED PROCEEDS.—The term ‘col9 lected proceeds’ means any sanctions, fines, pen10 alties, or awards obtained in any covered enforce11 ment action, whether by judgment, settlement, or a 

12 deferred prosecution agreement. 

13 ‘‘(3) COVERED ENFORCEMENT ACTION.—The 

14 term ‘covered enforcement action’ means any crimi15 nal action brought by the Attorney General under 

16 the antitrust laws that results in collected proceeds 

17 exceeding $1,000,000. 

18 ‘‘(4) ORIGINAL INFORMATION.—The term 

19 ‘original information’ means information that— 

20 ‘‘(A) is derived from the personal knowl21 edge of a whistleblower; 

22 ‘‘(B) is not known to the Attorney General 

23 or the Department of Justice from any other 

24 source, unless the whistleblower is the original 

25 source of the information; 


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1 ‘‘(C) is not exclusively derived from an al2 legation made in a judicial or administrative 

3 hearing, in a governmental report, hearing, 

4 audit, or investigation, or from the news media, 

5 unless the whistleblower is a source of the infor6 mation; and 

7 ‘‘(D) is not already required to be disclosed 

8 to the Department of Justice or another Fed9 eral agency. 

10 ‘‘(5) RELATED ACTION.—The term ‘related ac11 tion’, when used with respect to any covered enforce12 ment action brought by the Attorney General, means 

13 any criminal action brought by another United 

14 States entity that is based upon the original infor15 mation provided by a whistleblower that led to the 

16 successful enforcement action by the Attorney Gen17 eral. 

18 ‘‘(6) WHISTLEBLOWER.—The term ‘whistle19 blower’ means any individual who provides informa20 tion relating to a violation of the antitrust laws to 

21 the Department of Justice, in a manner established 

22 by the Department of Justice. 

23 ‘‘(b) AWARDS.— 

24 ‘‘(1) IN GENERAL.—In a covered enforcement 

25 action, or related action, the Attorney General, subVerDate Sep 11 2014 19:26 Jun 14, 2024 Jkt 049200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S4308.IS S4308

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1 ject to subsection (c), may pay an award or awards 

2 to a whistleblower who voluntarily provided original 

3 information to the Department of Justice that led to 

4 the successful enforcement of the covered enforce5 ment action, or related action, in an amount not less 

6 than 10 percent and not more than 30 percent, in 

7 total, of what has been collected of the criminal fine 

8 imposed in the covered enforcement action or related 

9 action under the antitrust laws; 

10 ‘‘(2) PAYMENT.—Any amount paid under para11 graph (1) shall be paid from the criminal fine col12 lected in the covered enforcement action. 

13 ‘‘(c) DETERMINATION OF AMOUNT OF AWARD; DE14 NIAL OF AWARD.— 

15 ‘‘(1) DETERMINATION OF AMOUNT OF

16 AWARD.— 

17 ‘‘(A) DISCRETION.—The determination of 

18 the amount of an award made under subsection 

19 (b) shall be in the discretion of the Attorney 

20 General. 

21 ‘‘(B) CRITERIA.—In determining the 

22 amount of an award made under subsection (b), 

23 the Attorney General shall take into consider24 ation— 


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1 ‘‘(i) the significance of the informa2 tion provided by the whistleblower to the 

3 success of the covered enforcement action; 

4 ‘‘(ii) the degree of assistance and co5 operation provided by the whistleblower in 

6 a covered enforcement action; 

7 ‘‘(iii) the interest of the Department 

8 of Justice in deterring criminal violations 

9 of the antitrust laws by making awards to 

10 whistleblowers who provide information 

11 that leads to the successful covered en12 forcement actions; and 

13 ‘‘(iv) such additional relevant factors 

14 as the Attorney General may establish. 

15 ‘‘(2) DENIAL OF AWARD.—No award under 

16 subsection (b) shall be made— 

17 ‘‘(A) to any whistleblower who is, or was at 

18 the time the whistleblower who acquired the 

19 original information submitted to the Commis20 sion, a member, officer, or employee of— 

21 ‘‘(i) any branch, agency, or instru22 mentality of the Federal Government; or 

23 ‘‘(ii) any law enforcement organiza24 tion; 


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1 ‘‘(B) to any whistleblower who is convicted 

2 of a criminal violation related to the covered en3 forcement action for which the whistleblower 

4 otherwise could receive an award under this sec5 tion; 

6 ‘‘(C) to any whistleblower who was an 

7 originator or leader of or who coerced any other 

8 party to participate in the activity giving rise to 

9 liability under the antitrust laws in the covered 

10 enforcement action for which the whistleblower 

11 otherwise could receive an award under this sec12 tion; 

13 ‘‘(D) to any whistleblower who fails to re14 spond to provide timely, truthful, continuing, 

15 and complete cooperation to the Department of 

16 Justice relating to the original information or 

17 intentionally withholds information relating to 

18 the original information; 

19 ‘‘(E) to any whistleblower who commits, 

20 participates in, or attempts to commit or par21 ticipate in any crimes after disclosing the origi22 nal information to the Department of Justice; 

23 ‘‘(F) to any whistleblower who fails to sub24 mit information to the Department of Justice in 

25 such form as the Department may require, or 


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1 failed to report relevant information to the De2 partment known to the whistleblower when the 

3 whistleblower first reported the information to 

4 the Department; 

5 ‘‘(G) to any whistleblower who fails to sub6 mit information to the Department of Justice in 

7 such form as the Department may require as 

8 prescribed by regulation; 

9 ‘‘(H) to any whistleblower who planned 

10 and initiated an obstruction or attempted ob11 struction of an investigation by the Department 

12 of Justice of a violation of the antitrust laws; 

13 or 

14 ‘‘(I) to any whistleblower who engages in 

15 conduct that would disqualify the whistleblower 

16 if the whistleblower were a leniency applicant 

17 under the Leniency Program of the Antitrust 

18 Division. 

19 ‘‘(d) REPRESENTATION.—Any whistleblower who 

20 makes a claim for an award under subsection (b) may be 

21 represented by counsel. 

22 ‘‘(e) APPEALS.—Any determination made under this 

23 section, including whether, to whom, or in what amount 

24 to make awards, shall be in the discretion of the Attorney 

25 General. Any such determination, except the determinaVerDate Sep 11 2014 19:26 Jun 14, 2024 Jkt 049200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 E:\BILLS\S4308.IS S4308

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1 tion of the amount of an award if the award was made 

2 in accordance with subsection (b), may be appealed to the 

3 appropriate court of appeals of the United States not more 

4 than 30 days after the determination is issued by the At5 torney General. The court shall review the determination 

6 made by the Attorney General in accordance with section 

7 706 of title 5, United States Code.’’. 

8 SEC. 16. PREJUDGMENT INTEREST. 

9 Section 4 of the Clayton Act (15 U.S.C. 15) is 

10 amended by striking subsection (a) and inserting the fol11 lowing: 

12 ‘‘(a) Except as provided in subsection (b), any person 

13 who shall be injured in his business or property by reason 

14 of anything forbidden in the antitrust laws may sue there15 for in any district court of the United States in the district 

16 in which the defendant resides or is found or has an agent, 

17 without respect to the amount in controversy, and shall 

18 recover threefold the damages by him sustained, the cost 

19 of suit, including a reasonable attorney’s fee, and simple 

20 interest on threefold the damages by him sustained for 

21 the period beginning on the date of service of such per22 son’s pleading setting forth a claim under the antitrust 

23 laws and ending on the date of judgment.’’. 


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1 SEC. 17. NO FORCED ARBITRATION FOR ANTITRUST DIS2 PUTES. 

3 (a) IN GENERAL.—Title 9, United States Code, is 

4 amended by adding at the end the following: 

5 ‘‘CHAPTER 5—ARBITRATION ANTITRUST 

6 DISPUTES 

7 ‘‘§ 501. Definitions 

8 ‘‘In this chapter— 

9 ‘‘(1) the term ‘antitrust dispute’ means a dis10 pute— 

11 ‘‘(A) arising from an alleged violation of 

12 the antitrust laws (as defined in subsection (a) 

13 of the first section of the Clayton Act (15 

14 U.S.C. 12(a))) or State antitrust laws; and 

15 ‘‘(B) in which the plaintiffs seek certifi16 cation as a class under rule 23 of the Federal 

17 Rules of Civil Procedure or a comparable rule 

18 or provision of State law; 

19 ‘‘(2) the term ‘predispute arbitration agree20 ment’ means an agreement to arbitrate a dispute 

21 that has not yet arisen at the time of the making 

22 of the agreement; and 

23 ‘‘(3) the term ‘predispute joint-action waiver’ 

24 means an agreement, whether or not part of a 

25 predispute arbitration agreement, that would pro26 hibit, or waive the right of, one of the parties to the 


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1 agreement to participate in a joint, class, or collec2 tive action in a judicial, arbitral, administrative, or 

3 other forum, concerning a dispute that has not yet 

4 arisen at the time of the making of the agreement. 

5 ‘‘§ 502. No validity or enforceability 

6 ‘‘(a) IN GENERAL.—Notwithstanding any other pro7 vision of this title, no predispute arbitration agreement or 

8 predispute joint-action waiver shall be valid or enforceable 

9 with respect to an antitrust dispute. 

10 ‘‘(b) APPLICABILITY.—An issue as to whether this 

11 chapter applies with respect to a dispute shall be deter12 mined under Federal law. The applicability of this chapter 

13 to an agreement to arbitrate and the validity and enforce14 ability of an agreement to which this chapter applies shall 

15 be determined by a court, rather than an arbitrator, irre16 spective of whether the party resisting arbitration chal17 lenges the arbitration agreement specifically or in conjunc18 tion with other terms of the contract containing such 

19 agreement, and irrespective of whether the agreement pur20 ports to delegate such determinations to an arbitrator.’’. 

21 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

22 (1) IN GENERAL.—Title 9 of the United States 

23 Code is amended— 

24 (A) in section 2, by inserting ‘‘or 5’’ before 

25 the period at the end; 


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1 (B) in section 208, by inserting ‘‘or 5’’ be2 fore the period at the end; and 

3 (C) in section 307, by inserting ‘‘or 5’’ be4 fore the period at the end. 

5 (2) TABLE OF CHAPTERS.—The table of chap6 ters for title 9, United States Code, is amended by 

7 adding at the end the following: 

‘‘5. Arbitration of antitrust disputes ......................................... 501’’. 

8 SEC. 18. ADDITIONAL REMEDIES; RULES OF CONSTRUC9 TION. 

10 (a) ADDITIONAL REMEDIES.—The rights and rem11 edies provided under this Act are in addition to, not in 

12 lieu of, any other rights and remedies provided by Federal 

13 law, including under section 4, 4A, 15, or 16 of the Clay14 ton Act (15 U.S.C. 15, 15a, 25, 26) or section 13(b) of 

15 the Federal Trade Commission Act (15 U.S.C. 53(b)). 

16 (b) RULES OF CONSTRUCTION.—Nothing in this Act 

17 may be construed to— 

18 (1) impair or limit the applicability of any of 

19 the antitrust laws; and 

20 (2) prohibit any other remedy provided by Fed21 eral law. 

22 SEC. 19. AUTHORIZATION OF APPROPRIATIONS. 

23 (a) FISCAL YEAR 2025.—There is authorized to be 

24 appropriated for fiscal year 2025— 


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1 (1) $535,000,000 for the Antitrust Division of 

2 the Department of Justice; and 

3 (2) $725,000,000 for the Federal Trade Com4 mission. 

5 (b) SUBSEQUENT YEARS.—Beginning in fiscal year 

6 2026, and each fiscal year thereafter, all premerger notifi7 cation filing fees collected pursuant to section 7A of the 

8 Clayton Act (15 U.S.C. 18a) shall— 

9 (1) be retained and used for expenses necessary 

10 for the enforcement of antitrust and kindred laws by 

11 the Antitrust Division of the Department of Justice 

12 and the Federal Trade Commission, to remain avail13 able until expended; and 

14 (2) shall be treated as direct spending described 

15 in section 250(c)(8)(A) of the Balanced Budget and 

16 Emergency Deficit Control Act of 1985 (2 U.S.C. 

17 900(c)(8)(A)). 

Æ 


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