II 

117TH CONGRESS 

1ST SESSION S. 2039 

To improve the antitrust laws, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 14, 2021 

Mr. LEE (for himself and Mr. GRASSLEY) introduced the following bill; which 

was read twice and referred to the Committee on the Judiciary 

A BILL 

To improve 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Tougher Enforcement 

5 Against Monopolists Act’’ or the ‘‘TEAM Act’’. 

6 SEC. 2. TABLE OF CONTENTS. 

7 The table of contents for this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Table of contents. 

Sec. 3. Definitions. 

TITLE I—ONE AGENCY 

Sec. 101. Short title. 

Sec. 102. Findings. 

Sec. 103. Definitions. 


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Sec. 104. Transfer of antitrust enforcement functions from the Federal Trade 

Commission to the Department of Justice. 

Sec. 105. Removal of review authority from Federal Communications Commission and State entities. 

Sec. 106. Technical and conforming amendments. 

Sec. 107. Effective date. 

TITLE II—MERGERS 

Sec. 201. Premerger notification filing fees. 

Sec. 202. Merger presumptions. 

Sec. 203. Merger notification requirements. 

TITLE III—COMPETITION POLICY 

Sec. 301. Competitive impact statement. 

Sec. 302. Written explanations of enforcement and non-enforcement actions. 

Sec. 303. Studies. 

Sec. 304. Monopsony guidelines. 

TITLE IV—RESTORING BOARD IMMUNITY 

Sec. 401. Short title. 

Sec. 402. Statement of findings and purpose. 

Sec. 403. Definitions. 

Sec. 404. Antitrust immunity. 

Sec. 405. Active supervision. 

Sec. 406. Judicial review. 

TITLE V—OTHER IMPROVEMENTS TO ANTITRUST LAWS 

Sec. 501. Overturning Illinois Brick and Hanover Shoe. 

Sec. 502. Limitations on implied immunity from the antitrust laws. 

Sec. 503. Prejudgment interest. 

Sec. 504. Safe harbor for efforts to facilitate data portability and interoperability. 

Sec. 505. Study of assigning all antitrust cases to certain district courts of the 

United States. 

Sec. 506. Balancing harm and benefits. 

Sec. 507. Actions on behalf of consumers under Sherman Act. 

Sec. 508. Civil fines for knowing violations of the antitrust laws. 

Sec. 509. Direct evidence of intent to avoid or restrict competition. 

Sec. 510. Limit on contracting. 

Sec. 511. Prohibiting discrimination in distribution. 

Sec. 512. Authorizations of appropriations. 

1 SEC. 3. DEFINITIONS. 

2 In this Act: 

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

4 laws’’ means— 


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1 (A) the Sherman Act (15 U.S.C. 1 et seq.); 

2 and 

3 (B) the Clayton Act (15 U.S.C. 12 et 

4 seq.). 

5 (2) ASSISTANT ATTORNEY GENERAL.—The 

6 term ‘‘Assistant Attorney General’’ means the As7 sistant Attorney General for the Antitrust Division 

8 of the Department of Justice. 

9 (3) EXECUTIVE AGENCY.—The term ‘‘Executive 

10 agency’’ has the meaning given that term in section 

11 105 of title 5, United States Code. 

12 TITLE I—ONE AGENCY 

13 SEC. 101. SHORT TITLE. 

14 This title may be cited as the ‘‘One Agency Act’’. 

15 SEC. 102. FINDINGS. 

16 Congress finds the following: 

17 (1) It is the policy of the United States to pro18 mote the vigorous, effective, and efficient enforce19 ment of the antitrust laws. 

20 (2) The overlapping antitrust enforcement ju21 risdiction of the Department of Justice and the Fed22 eral Trade Commission has wasted taxpayer re23 sources, hampered enforcement efforts, and caused 

24 uncertainty for businesses and consumers in the 

25 United States. 


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1 (3) It is preferable that primary Federal re2 sponsibility for enforcing the antitrust laws of the 

3 United States be given to a single agency, and the 

4 Department of Justice is best suited to do so. 

5 SEC. 103. DEFINITIONS. 

6 In this title: 

7 (1) COMMISSION.—The term ‘‘Commission’’ 

8 means the Federal Trade Commission. 

9 (2) EFFECTIVE DATE.—The term ‘‘effective 

10 date’’ means the date described in section 107. 

11 (3) FTC ANTITRUST ACTION.—The term ‘‘FTC 

12 antitrust action’’ means any litigation or administra13 tive proceeding initiated by the Commission that— 

14 (A) is supervised by an FTC Antitrust 

15 Unit; or 

16 (B) relates to the antitrust laws or section 

17 5 of the Federal Trade Commission Act (15 

18 U.S.C. 45), as in effect on the day before the 

19 effective date. 

20 (4) FTC ANTITRUST ASSETS.—The term ‘‘FTC 

21 antitrust assets’’— 

22 (A) means all electronic or tangible records 

23 and files relating to matters supervised, as well 

24 as any physical assets or equipment owned and 


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1 used or retained, by an FTC Antitrust Unit; 

2 and 

3 (B) does not include any office space or 

4 leased facilities or equipment. 

5 (5) FTC ANTITRUST EMPLOYEE.—The term 

6 ‘‘FTC antitrust employee’’ means an individual who 

7 on the day before the effective date is employed by 

8 the Federal Trade Commission and assigned to an 

9 FTC Antitrust Unit. 

10 (6) FTC ANTITRUST FUNCTION.—The term 

11 ‘‘FTC antitrust function’’ means a function of the 

12 Commission relating to the antitrust laws or unfair 

13 methods of competition under section 5 of the Fed14 eral Trade Commission Act (15 U.S.C. 45), as in ef15 fect on the day before the effective date. 

16 (7) FTC ANTITRUST FUNDING.—The term 

17 ‘‘FTC antitrust funding’’ means— 

18 (A) all amounts appropriated before the ef19 fective date by an Act of Congress to the Fed20 eral Trade Commission that are designated, by 

21 Congress or the Commission, for an FTC Anti22 trust Unit; and 

23 (B) all fees collected by the Federal Trade 

24 Commission before the effective date under secVerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039

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1 tion 7A of the Clayton Act (15 U.S.C. 18a) and 

2 rules issued under that section. 

3 (8) FTC ANTITRUST UNIT.—The term ‘‘FTC 

4 Antitrust Unit’’ means— 

5 (A) the Bureau of Competition of the 

6 Commission; and 

7 (B) each division of the Bureau of Eco8 nomics of the Commission that is designated to 

9 work on FTC antitrust actions. 

10 (9) FUNCTION.—The term ‘‘function’’ means 

11 any duty, obligation, power, authority, responsibility, 

12 right, privilege, activity, or program. 

13 (10) TRANSITION PERIOD.—The term ‘‘transi14 tion period’’ means the period beginning on the ef15 fective date of this title and ending on the later of— 

16 (A) the date that is 1 year after the effec17 tive date of this title; or 

18 (B) the date that is 180 days after the 

19 date described in subparagraph (A), which may 

20 be extended by the Assistant Attorney General 

21 once for an additional 180 days, if the Assist22 ant Attorney General determines that a period 

23 longer than the period described in subpara24 graph (A) is necessary to avoid harm to the inVerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039

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1 terests of the United States or the effective en2 forcement of the antitrust laws. 

3 SEC. 104. TRANSFER OF ANTITRUST ENFORCEMENT FUNC4 TIONS FROM THE FEDERAL TRADE COMMIS5 SION TO THE DEPARTMENT OF JUSTICE. 

6 (a) TRANSFER OF FUNCTIONS.— 

7 (1) IN GENERAL.—Except as provided in para8 graph (3)(D), there shall be transferred to the De9 partment of Justice all FTC antitrust functions, 

10 FTC antitrust employees, FTC antitrust assets, and 

11 FTC antitrust funding on the earlier of— 

12 (A) the date determined by the Assistant 

13 Attorney General under paragraph (2)(B); or 

14 (B) the end of the transition period. 

15 (2) REQUIREMENT.—The Assistant Attorney 

16 General, taking care to minimize disruption to ongo17 ing enforcement matters and in consultation as nec18 essary with the Attorney General, the Office of Per19 sonnel Management, the General Services Adminis20 tration, and the Chairman of the Commission, 

21 shall— 

22 (A) take all necessary actions to complete 

23 implementation of this title before the end of 

24 the transition period; and 


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1 (B) determine the dates certain, which 

2 may not be earlier than the effective date nor 

3 later than the end of the transition period, on 

4 which the transfers under paragraph (1) shall 

5 occur. 

6 (3) PERSONNEL.— 

7 (A) ASSIGNMENT.—An FTC antitrust em8 ployee transferred to the Department of Justice 

9 under this title shall be assigned to the Anti10 trust Division of the Department of Justice. 

11 (B) EFFECT ON PERSONNEL.—Except as 

12 provided in subparagraph (C), the transfer 

13 under this title of an FTC antitrust employee 

14 shall not cause the employee to be separated or 

15 reduced in grade or compensation for 1 year 

16 after the transfer date. 

17 (C) EXECUTIVE SCHEDULE.—Notwith18 standing subparagraph (B), the Assistant At19 torney General may appoint an FTC antitrust 

20 employee in a Senior Executive Service position, 

21 as defined in section 3132 of title 5, United 

22 States Code, to a position within the Antitrust 

23 Division rate payable for a position at level 15, 

24 step 10 of the General Schedule. 


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1 (D) VOLUNTARY NONTRANSFER OF PER2 SONNEL.—Notwithstanding paragraph (1), an 

3 FTC antitrust employee may, with the consent 

4 of the Chairman of the Commission, elect to re5 main an employee of the Commission assigned 

6 to a non-FTC Antitrust Unit. 

7 (E) OFFICE SPACE.—Upon request from 

8 the Assistant Attorney General, and in con9 sultation as necessary with the General Services 

10 Administration, the Commission shall allow the 

11 Department of Justice to use any office space 

12 or leased facilities previously used by FTC anti13 trust employees until such time as the Depart14 ment of Justice may provide its own office 

15 space or facilities. After the transfer of FTC 

16 antitrust funding to the Department of Justice, 

17 the Department of Justice shall compensate the 

18 Commission for the costs of the use of such of19 fice space or leased facilities. 

20 (F) RESTRUCTURING.—Notwithstanding 

21 any other provision of law, the Assistant Attor22 ney General is authorized to restructure the 

23 Antitrust Division before the expiration of the 

24 transition period, as the Assistant Attorney 

25 General determines is appropriate, to carry out 


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1 the purposes of this title and accomplish the ef2 ficient enforcement of the antitrust laws. 

3 (4) ANTITRUST ACTIONS.— 

4 (A) IN GENERAL.—As soon as is reason5 ably practicable during the transition period, all 

6 open investigations, litigations, matters, or 

7 other proceedings being supervised by an FTC 

8 antitrust unit and relating to the antitrust laws 

9 or unfair methods of competition under section 

10 5 of the Federal Trade Commission Act (15 

11 U.S.C. 45), as in effect on the day before the 

12 effective date, shall be transferred to and as13 sumed by the Department of Justice. 

14 (B) HANDLING OF CERTAIN ADMINISTRA15 TIVE PROCEEDINGS.—Administrative pro16 ceedings that were initiated by the Commission, 

17 were unresolved as of the first day of the tran18 sition period, and relate to enforcement of the 

19 antitrust laws or unfair methods of competition 

20 under section 5 of the Federal Trade Commis21 sion Act (15 U.S.C. 45), as in effect on the day 

22 before the effective date, shall be treated in the 

23 following manner: 

24 (i) Any such proceeding pending be25 fore an administrative law judge shall be 


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1 dismissed without prejudice and the matter 

2 shall be referred to the Assistant Attorney 

3 General. 

4 (ii) For any such proceeding pending 

5 on appeal before the Commission, the ad6 ministrative appeal shall cease, the ruling 

7 of the administrative law judge shall be 

8 treated as the final decision of the Com9 mission, and the Court of Appeals for the 

10 District of Columbia Circuit shall have ju11 risdiction over any appeal therefrom. 

12 (C) INTERVENTION.— 

13 (i) IN GENERAL.—In any FTC anti14 trust action before a court of the United 

15 States as of the first day of the transition 

16 period, the court shall allow the Depart17 ment of Justice to— 

18 (I) intervene and assume rep19 resentation of the Federal Govern20 ment from the Commission; and 

21 (II) amend any complaint origi22 nally brought by the Commission for 

23 the purpose of alleging violations of 

24 statutes other than the Federal Trade 


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1 Commission Act as necessary and 

2 where appropriate. 

3 (ii) SCHEDULING ORDER UPON RE4 QUEST.—Upon the request of the Commis5 sion or the Department of Justice, and in 

6 consultation with all parties to the matter, 

7 the court shall issue an order making such 

8 scheduling adjustments as necessary to fa9 cilitate the transfer of prosecutorial re10 sponsibilities under this subparagraph. 

11 (D) CONSENT DECREES.—At the end of 

12 the transition period, the Department of Justice 

13 shall have sole authority to enforce violations 

14 of, approve modifications to, or rescind any con15 sent decree entered into by the Commission be16 fore the effective date that concerns conduct al17 leged to violate the antitrust laws or unfair 

18 methods of competition under section 5 of the 

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

20 as in effect on the day before the effective date. 

21 (5) AUTHORITY TO CONDUCT INVESTIGATIVE

22 STUDIES.— 

23 (A) REPORTS OF PERSONS, PARTNER24 SHIPS, AND CORPORATIONS.— 


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1 (i) IN GENERAL.—The Department of 

2 Justice may require, by general or special 

3 orders, persons, partnerships, and corpora4 tions, engaged in or whose business affects 

5 commerce to file with the Department in 

6 such form as the Department may pre7 scribe annual or special reports or answers 

8 in writing to specific questions, furnishing 

9 to the Department such information as the 

10 Department may require as to the organi11 zation, business, conduct, practices, man12 agement, and relation to other corpora13 tions, partnerships, and individuals of the 

14 respective persons, partnerships, and cor15 porations filing such reports or answers in 

16 writing. 

17 (ii) OATH.—Reports and answers re18 quired under clause (i) shall— 

19 (I) be made under oath or other20 wise as the Department may pre21 scribe; 

22 (II) pertain solely to competition 

23 or the application of the antitrust 

24 laws; and 


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1 (III) be filed with the Depart2 ment within such reasonable period as 

3 the Department may prescribe, unless 

4 additional time be granted in any case 

5 by the Department. 

6 (B) PUBLICATION OF INFORMATION OR

7 REPORTS.— 

8 (i) IN GENERAL.—Except as provided 

9 in clause (ii), the Department of Justice— 

10 (I) shall make public from time 

11 to time such portions of the informa12 tion obtained by the Department 

13 under this paragraph as are in the 

14 public interest; 

15 (II) may make annual and spe16 cial reports to Congress that include 

17 recommendations for additional legis18 lation; and 

19 (III) shall provide for the publi20 cation of reports and decisions of the 

21 Department in such form and manner 

22 as may be best adapted for public in23 formation and use. 


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1 (ii) PROHIBITION AGAINST PUBLICA2 TION OF PRIVILEGED OR CONFIDENTIAL

3 INFORMATION.— 

4 (I) IN GENERAL.—Except as pro5 vided in subclause (II), the Depart6 ment of Justice shall not make public 

7 any trade secret or any commercial or 

8 financial information that is obtained 

9 from any person and that is privileged 

10 or confidential. 

11 (II) EXCEPTION.—The Depart12 ment may disclose information de13 scribed in subclause (I) to— 

14 (aa) officers and employees 

15 of appropriate Federal law en16 forcement agencies or to any offi17 cer or employee of any State law 

18 enforcement agency upon the 

19 prior certification of an officer of 

20 any such Federal or State law 

21 enforcement agency that such in22 formation will be maintained in 

23 confidence and will be used only 

24 for official law enforcement pur25 poses; or 


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1 (bb) any officer or employee 

2 of any foreign law enforcement 

3 agency under the same cir4 cumstances that making material 

5 available to foreign law enforce6 ment agencies is permitted under 

7 section 21(b) of the Federal 

8 Trade Commission Act (15 

9 U.S.C. 57b–2(b)). 

10 (6) BENEFIT OF ANTITRUST DIVISION.—All 

11 FTC antitrust assets and FTC antitrust funding 

12 transferred under this subsection shall be for the ex13 clusive use and benefit of the Antitrust Division of 

14 the Department of Justice. 

15 (b) TRANSITION PERIOD.— 

16 (1) IN GENERAL.—Except as provided in para17 graph (2), beginning on the effective date, the Com18 mission may not— 

19 (A) hire or assign an employee to an FTC 

20 Antitrust Unit; 

21 (B) open a new investigation or matter 

22 within an FTC Antitrust Unit or relating to 

23 antitrust enforcement; 

24 (C) without the approval of the Assistant 

25 Attorney General, enter into a consent decree, 


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1 enter into a settlement agreement, or otherwise 

2 resolve an FTC antitrust action; or 

3 (D) initiate a new FTC antitrust action. 

4 (2) ENFORCEMENT ON BEHALF OF THE DE5 PARTMENT OF JUSTICE.—Notwithstanding para6 graph (1), during the transition period, the Assist7 ant Attorney General may deputize an FTC Anti8 trust Employee to investigate or prosecute an al9 leged violation of the antitrust laws on behalf of the 

10 Department of Justice before the completion of the 

11 transfer of personnel under subsection (a)(3). 

12 (3) SAME RIGHTS AND OBLIGATIONS.— 

13 (A) IN GENERAL.—Notwithstanding any 

14 other provision of law, during the transition pe15 riod all Department of Justice employees under 

16 the supervision of the Assistant Attorney Gen17 eral shall have the same rights and obligations 

18 with respect to confidential information sub19 mitted to the Commission as FTC antitrust em20 ployees on the day before the effective date. 

21 (B) RULE OF CONSTRUCTION.—Nothing in 

22 this paragraph may be construed as implying 

23 any change to the rights and obligations de24 scribed in subparagraph (A) as a result of this 

25 title. 


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1 (c) AGREEMENTS.—The Assistant Attorney General, 

2 in consultation with the Chairman of the Commission, 

3 shall— 

4 (1) review any agreements between the Com5 mission and any other Federal agency or any foreign 

6 law enforcement agency; and 

7 (2) before the end of the transition period, seek 

8 to amend, transfer, or rescind such agreements as 

9 necessary and appropriate to carry out this title, en10 deavoring to complete such amendment, transfer, or 

11 rescindment with all due haste. 

12 (d) RULES.—The Attorney General shall, pursuant 

13 to section 7A of the Clayton Act (15 U.S.C. 18a) and in 

14 accordance with section 553 of title 5, United States Code, 

15 prescribe or amend any rules as necessary to carry out 

16 this title. 

17 SEC. 105. REMOVAL OF REVIEW AUTHORITY FROM FED18 ERAL COMMUNICATIONS COMMISSION AND 

19 STATE ENTITIES. 

20 (a) DEFINITIONS.—In this section— 

21 (1) the term ‘‘covered transaction’’ means any 

22 acquisition, assignment, or transfer of control of— 

23 (A) any license, authorization, or line sub24 ject to the jurisdiction of the Communications 

25 Act of 1934 (47 U.S.C. 151 et seq.); or 


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1 (B) any authorization, certificate, fran2 chise, or other instrument issued by a State 

3 commission or franchising authority; and 

4 (2) the terms ‘‘State commission’’ and ‘‘fran5 chising authority’’ have the meanings given those 

6 terms in sections 3 and 602, respectively, of the 

7 Communications Act of 1934 (47 U.S.C. 153, 522). 

8 (b) REVIEW OF COMMUNICATIONS TRANSACTIONS.— 

9 (1) SOLE RESPONSIBILITY OF DEPARTMENT OF

10 JUSTICE.—Notwithstanding any provision of the 

11 Communications Act of 1934 (47 U.S.C. 151 et 

12 seq.) or any law or regulation of a State or political 

13 subdivision thereof, the review of the competitive im14 pact of any proposed covered transaction shall be 

15 solely the responsibility of the Department of Justice 

16 pursuant to the antitrust laws, and neither the Fed17 eral Communications Commission nor any State 

18 commission or franchising authority shall have any 

19 authority to conduct such review. 

20 (2) CONSULTATION.—In reviewing the competi21 tive impact of a proposed covered transaction, the 

22 Attorney General shall solicit and consider the views 

23 of the Federal Communications Commission. 

24 (c) APPLICATION OF PUBLIC INTEREST STAND25 ARDS.— 


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1 (1) IN GENERAL.—A determination of the Fed2 eral Communications Commission described in para3 graph (2) with respect to a proposed covered trans4 action shall be limited to an assessment of whether 

5 the acquirer, assignee, or transferee meets the tech6 nical, financial, character, and citizenship qualifica7 tions that the Commission has prescribed by rule 

8 under the Communications Act of 1934 (47 U.S.C. 

9 151 et seq.) to hold that license, authorization, or 

10 line. 

11 (2) DETERMINATIONS.—A determination de12 scribed in this paragraph is a determination pursu13 ant to section 214(a) or 310(d) of the Communica14 tions Act of 1934 (47 U.S.C. 214(a), 310(d)) as to 

15 whether a proposed covered transaction would serve 

16 the public interest, without regard to whether the 

17 determination is phrased as whether the present or 

18 future public convenience and necessity require or 

19 will require the transaction or whether the public in20 terest, convenience, and necessity will be served by 

21 the transaction. 

22 SEC. 106. TECHNICAL AND CONFORMING AMENDMENTS. 

23 (a) CLAYTON ACT.—The Clayton Act (15 U.S.C. 12 

24 et seq.) is amended— 

25 (1) in section 2 (15 U.S.C. 13)— 


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1 (A) in subsection (a), by striking ‘‘Federal 

2 Trade Commission’’ and inserting ‘‘Attorney 

3 General of the United States’’; and 

4 (B) in subsection (b), by striking ‘‘Com5 mission’’ and inserting ‘‘Attorney General of 

6 the United States’’; 

7 (2) in section 5(a) (15 U.S.C. 16(a)), in the 

8 second sentence, by striking ‘‘, except that, in any 

9 action or proceeding brought under the antitrust 

10 laws, collateral estoppel effect shall not be given to 

11 any finding made by the Federal Trade Commission 

12 under the antitrust laws or under section 5 of the 

13 Federal Trade Commission Act which could give rise 

14 to a claim for relief under the antitrust laws’’; 

15 (3) in section 7 (15 U.S.C. 18)— 

16 (A) in the first undesignated paragraph, by 

17 striking ‘‘and no person subject to the jurisdic18 tion of the Federal Trade Commission shall ac19 quire the whole or any part of the assets of an20 other person engaged also in commerce or in 

21 any activity affecting commerce’’; and 

22 (B) in the second undesignated paragraph, 

23 by striking ‘‘and no person subject to the juris24 diction of the Federal Trade Commission shall 

25 acquire the whole or any part of the assets of 


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1 one or more persons engaged in commerce or in 

2 any activity affecting commerce’’; 

3 (4) in section 7A (15 U.S.C. 18a)— 

4 (A) in subsection (b)— 

5 (i) in paragraph (1)(A), in the matter 

6 preceding clause (i), by striking ‘‘the Fed7 eral Trade Commission and’’; and 

8 (ii) in paragraph (2), by striking 

9 ‘‘Federal Trade Commission and the’’; 

10 (B) in subsection (c)— 

11 (i) in paragraph (6), by striking ‘‘the 

12 Federal Trade Commission and’’; and 

13 (ii) in paragraph (8), by striking ‘‘the 

14 Federal Trade Commission and’’; 

15 (C) in subsection (d)— 

16 (i) in the matter preceding paragraph 

17 (1), by striking ‘‘Federal Trade Commis18 sion, with the concurrence of the Assistant 

19 Attorney General and’’ and inserting ‘‘At20 torney General of the United States’’; and 

21 (ii) in paragraph (1), by striking ‘‘the 

22 Federal Trade Commission and’’; 

23 (D) in subsection (e)— 

24 (i) in paragraph (1)— 


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1 (I) in subparagraph (A), by strik2 ing ‘‘Federal Trade Commission or 

3 the’’; and 

4 (II) in subparagraph (B), by 

5 striking ‘‘and the Federal Trade Com6 mission shall each’’ and inserting 

7 ‘‘shall’’; and 

8 (ii) in paragraph (2)— 

9 (I) by striking ‘‘Federal Trade 

10 Commission or the’’; 

11 (II) by striking ‘‘its or’ ’’; 

12 (III) by striking ‘‘the Federal 

13 Trade Commission or’’ each place the 

14 term appears; and 

15 (IV) by striking ‘‘, as the case 

16 may be,’’; 

17 (E) in subsection (f)— 

18 (i) by striking ‘‘the Federal Trade 

19 Commission, alleging that a proposed ac20 quisition violates section 7 of this Act or 

21 section 5 of the Federal Trade Commission 

22 Act, or an action is filed by’’; and 

23 (ii) by striking ‘‘the Federal Trade 

24 Commission or’’; 


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1 (F) in subsection (g)(2), in the matter fol2 lowing subparagraph (C), by striking ‘‘the Fed3 eral Trade Commission or’’; 

4 (G) in subsection (h), by striking ‘‘or the 

5 Federal Trade Commission’’; 

6 (H) in subsection (i)— 

7 (i) in paragraph (1), by striking ‘‘the 

8 Federal Trade Commission or’’ each place 

9 the term appears; and 

10 (ii) in paragraph (2)— 

11 (I) by striking ‘‘or the Federal Trade Com12 mission’’; and 

13 (J) by striking ‘‘, the Federal Trade Com14 mission Act,’’; and 

15 (5) in section 8(a)(5) (15 U.S.C. 19(a)(5)), in 

16 the second sentence, by striking ‘‘Federal Trade 

17 Commission’’ and inserting ‘‘Attorney General of the 

18 United States’’. 

19 (b) CHARITABLE GIFT ANNUITY ANTITRUST RELIEF

20 ACT OF 1995.—Section 3(1) of the Charitable Gift Annu21 ity Antitrust Relief Act of 1995 (15 U.S.C. 37a(1)) is 

22 amended by striking ‘‘, except that such term includes sec23 tion 5 of the Federal Trade Commission Act (15 U.S.C. 

24 45) to the extent that such section 5 applies to unfair 

25 methods of competition’’. 


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1 (c) PENSION FUNDING EQUITY ACT OF 2004.—Sec2 tion 207(b)(1)(A)(i) of the Pension Funding Equity Act 

3 of 2004 (15 U.S.C. 37b(b)(1)(A)(i)) is amended by strik4 ing ‘‘, except that such term includes section 5 of the Fed5 eral Trade Commission Act (15 U.S.C. 45) to the extent 

6 such section 5 applies to unfair methods of competition’’. 

7 (d) FEDERAL TRADE COMMISSION ACT.—The Fed8 eral Trade Commission Act (15 U.S.C. 41 et seq.) is 

9 amended— 

10 (1) in section 5 (15 U.S.C. 45)— 

11 (A) in subsection (a)— 

12 (i) in paragraph (1), by striking 

13 ‘‘methods of competition in or affecting 

14 commerce, and unfair’’; 

15 (ii) by striking paragraph (3); and 

16 (iii) by redesignating paragraph (4) as 

17 paragraph (3); 

18 (B) in subsection (b)— 

19 (i) in the first sentence, by striking 

20 ‘‘unfair method of competition or’’; and 

21 (ii) in the fifth sentence— 

22 (I) by striking ‘‘the method of 

23 competition or’’; and 

24 (II) by striking ‘‘method of com25 petition or such’’; 


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1 (C) in subsection (c)— 

2 (i) in the first sentence— 

3 (I) by striking ‘‘method of com4 petition or’’; and 

5 (II) by striking ‘‘method of com6 petition or the’’; and 

7 (ii) in the third sentence, by striking 

8 ‘‘or to competitors’’; 

9 (D) by striking subsection (e); 

10 (E) in subsection (g), by striking para11 graph (4); and 

12 (F) in subsection (n), in the first sentence, 

13 by striking ‘‘or to competition’’; 

14 (2) in section 6 (15 U.S.C. 46)— 

15 (A) by striking subsections (c) through (e) 

16 and (i); 

17 (B) by redesignating— 

18 (i) subsections (f), (g), and (h) as 

19 subsections (c) through (e), respectively; 

20 and 

21 (ii) subsections (j) through (l) as sub22 sections (f) through (h), respectively; 

23 (C) in subsection (f)(1), as so redesig24 nated, by striking ‘‘other than Federal antitrust 

25 laws (as defined in section 12(5) of the InterVerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039

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1 national Antitrust Enforcement Assistance Act 

2 of 1994 (15 U.S.C. 6211(5))),’’; and 

3 (D) in subsection (h)(2), as so redesig4 nated, in the matter preceding subparagraph 

5 (A), by striking ‘‘or competition’’; 

6 (3) by repealing section 7 (15 U.S.C. 47); 

7 (4) in section 11 (15 U.S.C. 51), by striking 

8 ‘‘antitrust Acts or the’’ each place the term appears; 

9 (5) in section 18 (15 U.S.C. 57a(a)(2)), by 

10 striking the second sentence; 

11 (6) in section 20 (15 U.S.C. 57b–1)— 

12 (A) in subsection (a)— 

13 (i) in paragraph (2), by striking ‘‘or 

14 in any antitrust violations’’; 

15 (ii) in paragraph (3), by striking ‘‘or 

16 any provisions relating to antitrust viola17 tions’’; 

18 (iii) in paragraph (7), by striking ‘‘or 

19 any antitrust violation’’; and 

20 (iv) by striking paragraph (8); 

21 (B) in subsection (c)(1), by striking ‘‘or to 

22 antitrust violations,’’; and 

23 (C) in subsection (j)(1), by striking ‘‘, any 

24 proceeding under section 11(b) of the Clayton 

25 Act (15 U.S.C. 21(b)),’’; 


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1 (7) in section 21(b)(6) (15 U.S.C. 57b– 

2 2(b)(6)), in the matter following subparagraph (D), 

3 by striking ‘‘paragraphs (5) and (7)’’ and inserting 

4 ‘‘paragraphs (4) and (6)’’; and 

5 (8) in section 21A (15 U.S.C. 57b–2a)— 

6 (A) by striking subsection (f); 

7 (B) by redesignating subsection (g) as sub8 section (f); 

9 (C) in subsection (f), as so redesignated, 

10 by striking ‘‘subsection (g)’’ each place the 

11 term appears and inserting ‘‘subsection (f)’’; 

12 and 

13 (D) in section 24 (15 U.S.C. 57b–5(a)), by 

14 striking ‘‘for any conduct which, because of the 

15 provisions of the Act entitled ‘An Act to author16 ize association of producers of agricultural 

17 products’, approved February 18, 1922 (7 

18 U.S.C. 291 et seq., commonly known as the 

19 Capper-Volstead Act), is not a violation of any 

20 of the antitrust Acts or this Act’’. 

21 (e) WEBB-POMERENE ACT.—The Webb-Pomerene 

22 Act (15 U.S.C. 61 et seq.) is amended— 

23 (1) by repealing section 4 (15 U.S.C. 64); and 

24 (2) in section 5— 

25 (A) in the first undesignated paragraph— 


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1 (i) in the first sentence, by striking 

2 ‘‘Federal Trade Commission’’ and insert3 ing ‘‘Attorney General of the United 

4 States’’; and 

5 (ii) in the second sentence, by striking 

6 ‘‘commission’’ each place the term appears 

7 and inserting ‘‘Attorney General of the 

8 United States’’; 

9 (B) in the second undesignated para10 graph— 

11 (i) in the first sentence, by striking 

12 ‘‘Federal Trade Commission’’ and insert13 ing ‘‘Attorney General of the United 

14 States’’; and 

15 (ii) by striking the third sentence; and 

16 (C) by striking the third undesignated 

17 paragraph. 

18 (f) WOOL PRODUCTS LABELING ACT OF 1939.—The 

19 Wool Products Labeling Act of 1939 (15 U.S.C. 68 et 

20 seq.) is amended— 

21 (1) by striking ‘‘an unfair method of competi22 tion, and’’ each place the term appears; and 

23 (2) in section 68g(b), by striking ‘‘an unfair 

24 method of competition and’’. 


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1 (g) FUR PRODUCTS LABELING ACT.—The Fur Prod2 ucts Labeling Act (15 U.S.C. 69 et seq.) is amended by 

3 striking ‘‘an unfair method of competition, and’’ each 

4 place the term appears. 

5 (h) TEXTILE FIBER PRODUCTS IDENTIFICATION

6 ACT.—The Textile Fiber Products Identification Act (15 

7 U.S.C. 70 et seq.) is amended— 

8 (1) by striking ‘‘an unfair method of competi9 tion, and’’ each place the term appears; and 

10 (2) in section 3 (15 U.S.C. 70a), by striking 

11 ‘‘an unfair method of competition and’’ each place 

12 the term appears. 

13 (i) ANTITRUST CIVIL PROCESS ACT.—Section 4(d) of 

14 the Antitrust Civil Process Act (15 U.S.C. 1313(d)) is 

15 amended— 

16 (1) in paragraph (1), by striking ‘‘(1) Whoever’’ 

17 and inserting ‘‘Whoever’’; and 

18 (2) by striking paragraph (2). 

19 (j) INTERNATIONAL ANTITRUST ENFORCEMENT AS20 SISTANCE ACT OF 1994.—The International Antitrust 

21 Enforcement Assistance Act of 1994 (15 U.S.C. 6201 et 

22 seq.) is amended— 

23 (1) in section 2 (15 U.S.C. 6201), in the matter 

24 preceding paragraph (1), by striking ‘‘and the Fed25 eral Trade Commission’’; 


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1 (2) in section 3(b) (15 U.S.C. 6202(b)), by 

2 striking ‘‘and the Commission may, using their re3 spective authority to investigate possible violations of 

4 the Federal antitrust laws,’’ and inserting ‘‘may’’; 

5 (3) in section 5(1) (15 U.S.C. 6204(1)), by 

6 striking ‘‘or the Commission’’ each place the term 

7 appears; 

8 (4) in section 6 (15 U.S.C. 6205)— 

9 (A) by striking ‘‘or the Commission’’; and 

10 (B) by striking ‘‘6(f)’’ and inserting 

11 ‘‘6(c)’’; 

12 (5) in section 7 (15 U.S.C. 6206)— 

13 (A) by striking ‘‘, with the concurrence of 

14 the Commission,’’ each place the term appears; 

15 and 

16 (B) in subsection (c)(2)(B), by striking 

17 ‘‘and the Commission’’; 

18 (6) in section 8 (15 U.S.C. 6207)— 

19 (A) by striking ‘‘Neither the Attorney Gen20 eral nor the Commission may’’ each place the 

21 term appears and inserting ‘‘The Attorney Gen22 eral may not’’; 

23 (B) in subsection (a), by striking ‘‘or the 

24 Commission, as the case may be,’’; 


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1 (C) in subsection (b), by striking ‘‘or the 

2 Commission’’; and 

3 (D) in subsection (c)— 

4 (i) by striking ‘‘or the Commission’’; 

5 and 

6 (ii) by striking ‘‘or the Commission, 

7 as the case may be,’’; 

8 (7) in section 10 (15 U.S.C. 6209)— 

9 (A) in subsection (a)— 

10 (i) by striking ‘‘, the Commission,’’; 

11 and 

12 (ii) by striking ‘‘(a) In General.— 

13 The’’ and inserting ‘‘The’’; and 

14 (B) by striking subsection (b); 

15 (8) in section 12 (15 U.S.C. 6211)— 

16 (A) in paragraph (2)— 

17 (i) in the matter preceding subpara18 graph (A)— 

19 (I) by striking ‘‘and the Commis20 sion jointly determine’’ and inserting 

21 ‘‘determines’’; 

22 (II) by striking ‘‘jointly’’; and 

23 (III) by striking ‘‘and the Com24 mission’’; 

25 (ii) in subparagraph (A)— 


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1 (I) by striking ‘‘and the Commis2 sion’’ each place the term appears; 

3 and 

4 (II) by striking ‘‘provide’’ and in5 serting ‘‘provides’’; 

6 (iii) in subparagraph (E)(ii), in the 

7 matter preceding subclause (I), by striking 

8 ‘‘or the Commission, as the case may be,’’; 

9 (iv) in subparagraph (F)— 

10 (I) by striking ‘‘or the Commis11 sion’’; and 

12 (II) by striking ‘‘or the Commis13 sion, respectively,’’; and 

14 (v) in subparagraph (H)— 

15 (I) in clause (i)— 

16 (aa) by striking ‘‘or the 

17 Commission’’; and 

18 (bb) by striking ‘‘or the 

19 Commission, respectively,’’; and 

20 (II) in clause (ii), by striking ‘‘or 

21 the Commission’’ each place the term 

22 appears; 

23 (B) by striking paragraph (4); 


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1 (C) by redesignating paragraphs (5) 

2 through (9) as paragraphs (4) through (8), re3 spectively; and 

4 (D) in paragraph (4), as so redesignated, 

5 by striking ‘‘but also includes section 5 of the 

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

7 to the extent that such section 5 applies to un8 fair methods of competition’’; and 

9 (9) in section 13 (15 U.S.C. 6212)— 

10 (A) by striking ‘‘and the Commission are’’ 

11 and inserting ‘‘is’’; and 

12 (B) by striking ‘‘or the Commission, re13 spectively,’’. 

14 (k) MEDICARE PRESCRIPTION DRUG, IMPROVEMENT, 

15 AND MODERNIZATION ACT OF 2003.—Subtitle B of title 

16 XI of the Medicare Prescription Drug, Improvement, and 

17 Modernization Act of 2003 (Public Law 108–173; 117 

18 Stat. 2461) is amended— 

19 (1) in the subtitle heading, by striking ‘‘Federal 

20 Trade Commission’’ and inserting ‘‘Antitrust’’; 

21 (2) in section 1111 (21 U.S.C. 355 note)— 

22 (A) by striking paragraph (8); and 

23 (B) by redesignating paragraphs (9) 

24 through (12) as paragraphs (8) through (11), 

25 respectively; 


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1 (3) in section 1112(c) (21 U.S.C. 355 note), by 

2 striking ‘‘and the Commission’’ each place the term 

3 appears; 

4 (4) in section 1113 (21 U.S.C. 355 note), by 

5 striking ‘‘and the Commission’’; 

6 (5) in section 1114 (21 U.S.C. 355 note), by 

7 striking ‘‘or the Commission’’; 

8 (6) in section 1115 (21 U.S.C. 355 note)— 

9 (A) in subsection (a), by striking ‘‘, or 

10 brought by the Commission in accordance with 

11 the procedures established in section 16(a)(1) 

12 of the Federal Trade Commission Act (15 

13 U.S.C. 56(a))’’; and 

14 (B) in subsection (b), by striking ‘‘or the 

15 Commission’’; 

16 (7) in section 1116 (21 U.S.C. 355 note), in 

17 the matter preceding paragraph (1), by striking 

18 ‘‘Commission, with the concurrence of the Assistant 

19 Attorney General’’ and inserting ‘‘Attorney Gen20 eral’’; and 

21 (8) in section 1117 (21 U.S.C. 355 note), by 

22 striking ‘‘or the Commission’’ each place the term 

23 appears. 

24 (l) OTHER LAWS.—For any other provision of law re25 quiring the Assistant Attorney General or the Attorney 


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1 General to consult with or seek the concurrence of the 

2 Commission or the Chairman of the Commission, where 

3 such requirement relates to the antitrust laws or unfair 

4 methods of competition under section 5 of the Federal 

5 Trade Commission Act (15 U.S.C. 45), as in effect on the 

6 day before the effective date, that requirement shall be 

7 waived. 

8 SEC. 107. EFFECTIVE DATE. 

9 Except where explicitly provided otherwise, this title 

10 and the amendments made by this title shall take effect 

11 on the start of the first fiscal year that is at least 90 days 

12 after the date of enactment of this title. 

13 TITLE II—MERGERS 

14 SEC. 201. PREMERGER NOTIFICATION FILING FEES. 

15 Section 605 of Public Law 101–162 (15 U.S.C. 18a 

16 note) is amended— 

17 (1) in subsection (b)— 

18 (A) in paragraph (1)— 

19 (i) by striking ‘‘$45,000’’ and insert20 ing ‘‘$30,000’’; 

21 (ii) by striking ‘‘$100,000,000’’ and 

22 inserting ‘‘$161,500,000’’; 

23 (iii) by striking ‘‘2004’’ and inserting 

24 ‘‘2022’’; and 


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1 (iv) by striking ‘‘2003’’ and inserting 

2 ‘‘2021’’; 

3 (B) in paragraph (2)— 

4 (i) by striking ‘‘$125,000’’ and insert5 ing ‘‘$100,000’’; 

6 (ii) by striking ‘‘$100,000,000’’ and 

7 inserting ‘‘$161,500,000’’; 

8 (iii) by striking ‘‘but less’’ and insert9 ing ‘‘but is less’’; and 

10 (iv) by striking ‘‘and’’ at the end; 

11 (C) in paragraph (3)— 

12 (i) by striking ‘‘$280,000’’ and insert13 ing ‘‘$250,000’’; and 

14 (ii) by striking the period at the end 

15 and inserting ‘‘but is less than 

16 $1,000,000,000 (as so adjusted and pub17 lished);’’; and 

18 (D) by adding at the end the following: 

19 ‘‘(4) $400,000 if the aggregate total amount 

20 determined under section 7A(a)(2) of the Clayton 

21 Act (15 U.S.C. 18a(a)(2)) is not less than 

22 $1,000,000,000 (as so adjusted and published) but 

23 is less than $2,000,000,000 (as so adjusted and 

24 published); 


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1 ‘‘(5) $800,000 if the aggregate total amount 

2 determined under section 7A(a)(2) of the Clayton 

3 Act (15 U.S.C. 18a(a)(2)) is not less than 

4 $2,000,000,000 (as so adjusted and published) but 

5 is less than $5,000,000,000 (as so adjusted and 

6 published); and 

7 ‘‘(6) $1,250,000 if the aggregate total amount 

8 determined under section 7A(a)(2) of the Clayton 

9 Act (15 U.S.C. 18a(a)(2)) is not less than 

10 $5,000,000,000 (as so adjusted and published).’’; 

11 and 

12 (2) by adding at the end the following: 

13 ‘‘(c)(1) For each fiscal year commencing after Sep14 tember 30, 2022, the filing fees in this section shall be 

15 increased each year by an amount equal to the percentage 

16 increase, if any, in the Gross National Product of the 

17 United States, as determined by the Department of Labor 

18 or its successor, for the year then ended over the level 

19 so established for the year ending September 30, 2021. 

20 ‘‘(2) As soon as practicable, but not later than Janu21 ary 31 of each year, the Attorney General shall publish 

22 the adjusted amounts required by paragraph (1). 

23 ‘‘(3) The Attorney General shall not adjust amounts 

24 required by paragraph (1) if the percentage increase de25 scribed in paragraph (1) is less than 1 percent. 


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1 ‘‘(4) An amount adjusted under this section shall be 

2 rounded to the nearest multiple of $5,000.’’. 

3 SEC. 202. MERGER PRESUMPTIONS. 

4 Section 7 of the Clayton Act (15 U.S.C. 18), as 

5 amended by section 106 of this Act, is amended— 

6 (1) by striking all that proceeds ‘‘person en7 gaged in commerce’’ and inserting the following: 

8 ‘‘SEC. 7. ACQUISITION BY ONE CORPORATION OF STOCK OF 

9 ANOTHER. 

10 ‘‘(a) IN GENERAL.—No’’; 

11 (2) by striking ‘‘No person shall acquire,’’ and 

12 inserting the following: 

13 ‘‘(b) ACQUISITION OF PERSONS ENGAGED IN COM14 MERCE.—No person shall acquire’’; 

15 (3) by striking ‘‘This section shall not apply’’ 

16 and inserting the following: 

17 ‘‘(d) NOT LESSENING COMPETITION.—This section 

18 shall not apply’’; 

19 (4) by striking ‘‘Nor shall anything herein’’ and 

20 inserting the following: 

21 ‘‘(e) COMMON CARRIERS.—Nor shall anything here22 in’’; 

23 (5) by striking ‘‘Nothing contained in this sec24 tion shall be held’’ and inserting the following: 


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1 ‘‘(f) HOLD HARMLESS.—Nothing contained in this 

2 section shall be held’’; 

3 (6) by striking ‘‘Nothing contained in this sec4 tion shall apply to transactions’’ and inserting the 

5 following: 

6 ‘‘(g) CERTAIN TRANSACTIONS.—Nothing contained 

7 in this section shall apply to transactions’’; and 

8 (7) by inserting after subsection (b), as so des9 ignated by this section, the following: 

10 ‘‘(c) ACTIONS BY UNITED STATES.— 

11 ‘‘(1) IN GENERAL.—The United States may ini12 tiate a proceeding to enjoin a transaction prohibited 

13 by this section. 

14 ‘‘(2) REBUTTABLE PRESUMPTIONS.— 

15 ‘‘(A) IN GENERAL.—In a proceeding initi16 ated by the United States to enjoin a trans17 action prohibited by this section, it shall be pre18 sumed that the effect of a transaction may be 

19 substantially to lessen competition, or to tend to 

20 create a monopoly, if— 

21 ‘‘(i) the United States shows by a pre22 ponderance of the evidence that, as a re23 sult of the transaction, the combined firm 

24 would be able meaningfully to increase 


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1 prices or reduce output, innovation, or 

2 quality in a market; or 

3 ‘‘(ii)(I) the transaction would combine 

4 persons that compete, would compete, or 

5 would attempt to compete against each 

6 other, absent the transaction; and 

7 ‘‘(II) the combined firm would have a 

8 post-transaction share of the market 

9 that— 

10 ‘‘(aa) is greater than 33 percent; 

11 or 

12 ‘‘(bb) if the acquiring person is 

13 owned or controlled by a foreign gov14 ernment, is greater than 5 percent. 

15 ‘‘(B) REBUTTAL.—A defendant may rebut 

16 a presumption under clause (i) or (ii) of sub17 paragraph (A) only if the defendant dem18 onstrates by a preponderance of the evidence 

19 that— 

20 ‘‘(i) the combined parties post-trans21 action would not be able to exercise market 

22 power; or 

23 ‘‘(ii) the anticompetitive effects of the 

24 transaction— 

25 ‘‘(I) are insubstantial; or 


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1 ‘‘(II) are clearly outweighed by 

2 the procompetitive benefits of the 

3 transaction in the relevant market. 

4 ‘‘(C) RULE OF CONSTRUCTION.—The pre5 sumptions under clauses (i) and (ii) of subpara6 graph (A) shall not limit any other presumption 

7 courts have created or used or may create or 

8 use in resolving cases under this section. 

9 ‘‘(3) IRREBUTTABLE PRESUMPTION.—In a pro10 ceeding initiated by the United States to enjoin a 

11 transaction prohibited by this section, except to the 

12 extent the transaction is necessary to prevent serious 

13 harm to the national economy, the effect of a trans14 action shall be deemed to substantially to lessen 

15 competition, or to tend to create a monopoly, if— 

16 ‘‘(A) the transaction would combine per17 sons that compete, would compete, or would at18 tempt to compete against each other absent the 

19 transaction; and 

20 ‘‘(B) the combined firm would have a post21 transaction share of the market that is greater 

22 than 66 percent.’’. 

23 SEC. 203. MERGER NOTIFICATION REQUIREMENTS. 

24 (a) IN GENERAL.—Section 7A(a)(2) of the Clayton 

25 Act (15 U.S.C. 18a(a)(2)) is amended— 


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1 (1) by redesignating subclause (III) of subpara2 graph (B)(ii) as item (bb); 

3 (2) by striking ‘‘(ii)(I) any voting’’ and all that 

4 follows through ‘‘(II) any voting securities or assets 

5 of a person not engaged in manufacturing’’ and in6 serting ‘‘(II)(aa) any voting securities or assets of a 

7 person’’; 

8 (3) by striking ‘‘(B)(i) in excess’’ and inserting 

9 ‘‘(ii)(I) in excess’’; 

10 (4) by striking ‘‘(A) in excess’’ and inserting 

11 ‘‘(i) in excess’’; 

12 (5) by inserting ‘‘(A)’’ after ‘‘(2)’’; 

13 (6) by striking ‘‘published) or more.’’ and in14 serting ‘‘published) or more; or’’; and 

15 (7) by inserting after subparagraph (A), as so 

16 redesignated, the following: 

17 ‘‘(B) except with respect to an acquisition made 

18 solely for the purpose of investment, the acquiring 

19 person— 

20 ‘‘(i) has assets in excess of 

21 $500,000,000,000; or 

22 ‘‘(ii) is owned or controlled by a foreign 

23 government.’’. 

24 (b) REPEAL OF LIMITED NEXUS TO COMMERCE IN

25 THE UNITED STATES EXCEPTION.— 


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1 (1) IN GENERAL.—The Assistant Attorney Gen2 eral shall amend sections 802.50 and 802.51 of title 

3 16, Code of Federal Regulations, and any other rule 

4 or regulation, to repeal any exception from filing a 

5 notification under subsection (a) of section 7A of the 

6 Clayton Act (15 U.S.C. 18a) or from the waiting pe7 riod described in subsection (b)(1) of such section 

8 with respect to an acquisition on the basis that the 

9 acquisition has a limited nexus with the United 

10 States. 

11 (2) LIMITATION.—The Assistant Attorney Gen12 eral may not promulgate or enforce any rule that ex13 cludes from the requirements under section 7A of 

14 the Clayton Act (15 U.S.C. 18a) any acquisition by 

15 or of a person engaged in commerce or in any activ16 ity affecting commerce on the basis that the acquisi17 tion has a limited nexus with the United States. 

18 TITLE III—COMPETITION 

19 POLICY 

20 SEC. 301. COMPETITIVE IMPACT STATEMENT. 

21 (a) DEFINITIONS.—In this section: 

22 (1) ADMINISTRATOR.—The term ‘‘Adminis23 trator’’ means the Administrator of the Office of In24 formation and Regulatory Affairs of the Office of 

25 Management and Budget. 


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1 (2) AGENCY; SIGNIFICANT REGULATORY AC2 TION.—The terms ‘‘agency’’ and ‘‘significant regu3 latory action’’ have the meanings given those terms 

4 in section 3 of the Executive Order. 

5 (3) EXECUTIVE ORDER.—The term ‘‘Executive 

6 Order’’ means Executive Order 12866 (5 U.S.C. 601 

7 note; relating to regulatory planning and review). 

8 (b) REQUIREMENT.—In reviewing a significant regu9 latory action of an agency in accordance with the Execu10 tive Order, the Administrator shall prepare and submit to 

11 the agency a competitive impact statement that— 

12 (1) identifies any way in which the significant 

13 regulatory action may impact or harm competition 

14 in the market to which the significant regulatory ac15 tion applies; and 

16 (2) provides guidance on how the significant 

17 regulatory could be revised to minimize the impact 

18 or harm to competition in that market. 

19 SEC. 302. WRITTEN EXPLANATIONS OF ENFORCEMENT AND 

20 NON-ENFORCEMENT ACTIONS. 

21 (a) IN GENERAL.—The Assistant Attorney General 

22 shall prepare and preserve a written explanation of any 

23 decision by the Federal Government not to file a civil ac24 tion under the antitrust laws after the use of compulsory 

25 process by the Federal Government. 


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1 (b) AVAILABILITY TO CONGRESS.—Upon request by 

2 any Member of Congress, the Assistant Attorney General 

3 shall make available an unredacted version of a written 

4 explanation described in subsection (a). A Member of Con5 gress shall not disclose an unredacted version of a written 

6 explanation received under this subsection. 

7 (c) PUBLIC AVAILABILITY.— 

8 (1) IN GENERAL.—The Assistant Attorney Gen9 eral shall make a written explanation described in 

10 subsection (a) publicly available if all subjects of the 

11 investigation have acknowledged the existence of the 

12 investigation. 

13 (2) OTHER AVAILABILITY.—A written expla14 nation described in subsection (a) may be disclosed 

15 in accordance with the procedures and limitations 

16 under section 552 of title 5, United States Code 

17 (commonly known as the ‘‘Freedom of Information 

18 Act’’), or any other applicable provision of law. 

19 (3) REDACTION.—Information in a written ex20 planation described in subsection (a) that is made 

21 publicly available shall be redacted to protect con22 fidential or competitively sensitive information, 

23 which may include the identities of the subjects of 

24 the investigation when appropriate. 


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1 SEC. 303. STUDIES. 

2 (a) INSTITUTIONAL INVESTORS.—Not later than 2 

3 years after the date of enactment of this Act, the Assistant 

4 Attorney General, in consultation with the Securities and 

5 Exchange Commission, shall conduct and publish a study, 

6 using any compulsory process reasonably necessary, rely7 ing on public data and information if available and suffi8 cient, and incorporating public comment, on— 

9 (1) the extent to which an institutional investor 

10 or related institutional investors have ownership or 

11 control interests in competitors in moderately con12 centrated or concentrated markets; 

13 (2) the economic impacts of such overlapping 

14 ownership or control; and 

15 (3) the mechanisms by which an institutional 

16 investor could affect competition among the compa17 nies in which it invests and whether such mecha18 nisms are prevalent. 

19 (b) SELF-PREFERENCING BY DIGITAL PLAT20 FORMS.—Not later than 2 years after the date of enact21 ment of this Act, the Assistant Attorney General shall con22 duct and publish a study, using any compulsory process 

23 reasonably necessary, relying on public data and informa24 tion if available and sufficient, and incorporating public 

25 comment, on self-preferencing by digital platforms. 


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1 (c) TECHNOLOGY MERGER RETROSPECTIVE.—Not 

2 later than 2 years after the date of enactment of this Act, 

3 the Assistant Attorney General shall— 

4 (1) conduct a retrospective analysis of mergers 

5 involving technology companies completed during the 

6 15-year period ending on the date of enactment of 

7 this Act; and 

8 (2) publish a report of the findings of the anal9 ysis, which shall include an analysis of the adequacy 

10 of any enforcement actions or settlement agreements 

11 regarding such mergers. 

12 SEC. 304. MONOPSONY GUIDELINES. 

13 The Assistant Attorney General shall publicly issue 

14 guidelines regarding how the Antitrust Division of the De15 partment of Justice analyzes and approaches a matter in16 volving a monopsony under the antitrust laws. 

17 TITLE IV—RESTORING BOARD 

18 IMMUNITY 

19 SEC. 401. SHORT TITLE. 

20 This title may be cited as the ‘‘Restoring Board Im21 munity Act of 2021’’ or the ‘‘RBI Act’’. 

22 SEC. 402. STATEMENT OF FINDINGS AND PURPOSE. 

23 Congress finds the following: 

24 (1) The prevalence of occupational licensing has 

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1 cause private interests have sought licensing in order 

2 to limit competition. 

3 (2) Occupational licensing often limits opportu4 nities for workers, frustrates entrepreneurs seeking 

5 to introduce new business models, and raises prices 

6 paid by consumers. 

7 (3) Licensing should be imposed only to combat 

8 real, substantial threats to public health, safety, or 

9 welfare and only where other less restrictive regu10 latory alternatives are insufficient to protect con11 sumers and serve the public interest. 

12 (4) Regulators should consider a range of less 

13 restrictive alternatives before enacting an occupa14 tional licensing regime, which may include inspec15 tions, bonding or insurance requirements, registra16 tion, and voluntary certification. 

17 (5) Voluntary certification provides a particu18 larly significant alternative to licensure, as it allows 

19 market participants to signal to consumers the at20 tainment of personal qualifications without limiting 

21 entry into the marketplace. 

22 (6) The failure of State governments to adopt 

23 less restrictive alternatives to licensing, and less bur24 densome requirements in those areas where licensing 


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1 is deemed necessary, has resulted in significant costs 

2 to consumers and the broader economy. 

3 (7) The United States Supreme Court re4 sponded to these concerns in North Carolina Board 

5 of Dental Examiners v. FTC, 135 S. Ct. 1101 

6 (2015), holding that self-interested licensing boards 

7 may be subject to liability under the antitrust laws, 

8 but that decision has also created significant uncer9 tainty for the States and their licensing boards. 

10 (8) Some States have responded to the decision 

11 in North Carolina Board of Dental Examiners by es12 tablishing a layer of bureaucratic oversight that 

13 merely monitors board actions for consistency with 

14 State licensing laws. This response is a missed op15 portunity for reform, as it does not address the spe16 cific competition concern raised in North Carolina 

17 Board of Dental Examiners or the underlying prob18 lems with over-reliance on occupational licensure as 

19 a regulatory approach and with overly broad enforce20 ment of licensing laws as a means to regulate com21 mercial activities outside an occupation’s scope of 

22 practice. 

23 (9) Legislation is necessary to clarify the re24 quirements of active supervision, both to offer States 

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1 cupational boards and to make clear that mere bu2 reaucratic oversight to ensure consistency with State 

3 licensing laws does not suffice to confer immunity. 

4 (10) This title is intended to offer States a 

5 choice between two alternative routes to achieve im6 munity for their occupational licensing boards—ei7 ther establishing a mechanism for meaningful active 

8 supervision of licensing boards by State officials or 

9 establishing a mechanism for meaningful judicial re10 view of board actions in the State courts. 

11 SEC. 403. DEFINITIONS. 

12 In this title: 

13 (1) CERTIFICATION.—The term ‘‘certification’’ 

14 means a voluntary program under which— 

15 (A) a private organization (in the case of 

16 private certification) or the government of a 

17 State (in the case of government certification) 

18 authorizes an individual who meets certain per19 sonal qualifications to use ‘‘certified’’ as a des20 ignated title with respect to the performance of 

21 a lawful occupation; and 

22 (B) a non-certified individual may perform 

23 the lawful occupation for compensation but may 

24 not use the title ‘‘certified’’. 


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1 (2) GOOD FAITH.—The term ‘‘good faith’’, with 

2 respect to performance— 

3 (A) means diligent performance that is di4 rected towards achieving the policies set forth 

5 in this title; 

6 (B) does not include performance that is— 

7 (i) designed to subvert or evade the 

8 policies set forth in this title; or 

9 (ii) carried out in a manner that has 

10 the systematic effect of subverting or evad11 ing the policies set forth in this title; and 

12 (C) refers to an objective, rather than sub13 jective, standard. 

14 (3) LAWFUL OCCUPATION.—The term ‘‘lawful 

15 occupation’’ means a course of conduct, pursuit, or 

16 profession that includes the sale of goods or services 

17 that are not themselves illegal to sell irrespective of 

18 whether the individual selling the goods or services 

19 is subject to occupational licensing laws. 

20 (4) LEAST RESTRICTIVE REGULATION.—The 

21 term ‘‘least restrictive regulation’’ means, from least 

22 to most restrictive: 

23 (A) One or more of the following, each of 

24 which shall be considered equally restrictive: 

25 (i) Market competition. 


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1 (ii) Industry or consumer-related rat2 ings and reviews. 

3 (iii) Private certification. 

4 (iv) A specific private civil cause of 

5 action to remedy consumer harm. 

6 (v) A deceptive trade practice act. 

7 (vi) A regulation of the process of 

8 providing the specific goods or services to 

9 consumers. 

10 (vii) Inspections. 

11 (viii) Bonding or insurance. 

12 (ix) Registration. 

13 (x) Government certification. 

14 (B) Specialty occupational license for med15 ical reimbursement. 

16 (C) Occupational license. 

17 (5) LESS RESTRICTIVE ALTERNATIVES TO OC18 CUPATIONAL LICENSING.—The term ‘‘less restrictive 

19 alternatives to occupational licensing’’— 

20 (A) means regulations that achieve the 

21 public health or safety goals asserted by the 

22 government to justify licensing while imposing a 

23 less onerous restriction on entry into the mar24 ketplace; and 


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1 (B) includes the alternative forms of regu2 lation described in paragraph (4)(A). 

3 (6) MEMBER, OFFICER, OR EMPLOYEE.—The 

4 term ‘‘member, officer, or employee’’, with respect to 

5 an occupational licensing board, means an individual 

6 appointed by a State to the board. 

7 (7) OCCUPATIONAL LICENSE.—The term ‘‘occu8 pational license’’ means a nontransferable authoriza9 tion under law for an individual to perform a lawful 

10 occupation for compensation based on meeting per11 sonal qualifications established by the State govern12 ment. 

13 (8) OCCUPATIONAL LICENSING BOARD.—The 

14 term ‘‘occupational licensing board’’ or ‘‘board’’ 

15 means an entity established under State law— 

16 (A) the express purpose of which is to reg17 ulate the personal qualifications required to en18 gage in or practice a particular lawful occupa19 tion; 

20 (B) that has authority conferred by State 

21 law to interpret or enforce the occupational li22 censing laws of the State; and 

(C) not less than 2 23 ⁄3 of the members of 

24 which are appointed by an elected official of the 

25 State. 


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1 (9) OCCUPATIONAL LICENSING LAW.—The term 

2 ‘‘occupational licensing law’’— 

3 (A) means a State statute that allows an 

4 individual to work in a lawful occupation and 

5 use an occupational title; and 

6 (B) does not include a business license, fa7 cility license, building permit, or zoning and 

8 land use regulation, except to the extent that 

9 the law regulates an individual’s personal quali10 fications to engage in or practice a lawful occu11 pation. 

12 (10) OCCUPATIONAL REGULATION.—The term 

13 ‘‘occupational regulation’’— 

14 (A) means a statute, rule, practice, policy, 

15 or other law that substantially burdens an indi16 vidual’s ability to work in a lawful occupation; 

17 (B) includes a regulation requiring reg18 istration, certification, or an occupational li19 cense; and 

20 (C) does not include a business license, fa21 cility license, building permit, or zoning and 

22 land use regulation except to the extent that 

23 such a requirement or restriction substantially 

24 burdens an individual’s ability to work in a law25 ful occupation. 


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1 (11) PERSONAL QUALIFICATIONS.—The term 

2 ‘‘personal qualifications’’ means criteria related to 

3 an individual’s personal background and characteris4 tics, including completion of an approved educational 

5 program, satisfactory performance on an examina6 tion, work experience, other evidence of attainment 

7 of requisite skills or knowledge, moral standing, 

8 criminal history, and completion of continuing edu9 cation. 

10 (12) REGISTRATION.—The term ‘‘registration’’ 

11 means a requirement that an individual give notice 

12 to the government of a State that may include— 

13 (A) the individual’s name and address; 

14 (B) the individual’s agent for service of 

15 process; 

16 (C) the location of the activity to be per17 formed; and 

18 (D) a description of the service the indi19 vidual provides. 

20 (13) SPECIALTY OCCUPATIONAL LICENSE FOR

21 MEDICAL REIMBURSEMENT.—The term ‘‘specialty 

22 occupational license for medical reimbursement’’ 

23 means a nontransferable authorization in law for an 

24 individual to qualify for payment or reimbursement 

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1 vision of medical services based on meeting personal 

2 qualifications established by the State legislature. 

3 (14) STATE.—The term ‘‘State’’ means— 

4 (A) each of the several States; and 

5 (B) the District of Columbia. 

6 SEC. 404. ANTITRUST IMMUNITY. 

7 (a) IN GENERAL.—Subject to subsection (b), the 

8 Sherman Act (15 U.S.C. 1 et seq.) shall not apply to any 

9 action of an occupational licensing board of a State, or 

10 any action of a member, officer, or employee of the board 

11 acting in the official capacity of that member, officer, or 

12 employee, if— 

13 (1) the requirements under section 405 of this 

14 title are satisfied; or 

15 (2) the requirements under section 406 of this 

16 title are satisfied. 

17 (b) REQUIREMENT OF GOOD FAITH.—The immunity 

18 provided under subsection (a) shall not apply to any action 

19 of an occupational licensing board of a State, or any action 

20 of a member, officer, or employee of the board acting in 

21 the official capacity of that member, officer, or employee, 

22 unless the State acts in good faith to perform the applica23 ble requirements under section 405 or 406 of this title. 

24 (c) EXISTING ENTITIES OR PROCEDURES.—The fact 

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1 lished before the date of enactment of this Act shall not 

2 prevent an occupational licensing board of the State, or 

3 a member, officer, or employee of that board, from quali4 fying for immunity under subsection (a) if the State gov5 ernmental entity or procedure satisfies the applicable re6 quirements under section 405 or 406 of this title. 

7 (d) SAVINGS CLAUSE.—The immunity provided 

8 under subsection (a) shall not apply to an action unrelated 

9 to regulating the personal qualifications required to en10 gage in or practice a lawful occupation, such as rules of 

11 an occupational licensing board governing minimum prices 

12 or residency requirements. 

13 SEC. 405. ACTIVE SUPERVISION. 

14 (a) IN GENERAL.—The immunity under section 

15 404(a) shall apply to any action of an occupational licens16 ing board of a State, or any action of a member, officer, 

17 or employee of that board acting in the official capacity 

18 of that member, officer, or employee, if— 

19 (1) the actions of the occupational licensing 

20 board or member, officer, or employee are author21 ized by a non-frivolous interpretation of the occupa22 tional licensing laws of the State; 

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1 ty, or welfare, in accordance with subsection (b) of 

2 this section; and 

3 (3) the State enacts legislation providing for ac4 tive supervision of the actions of an occupational li5 censing board and any member, officer, or employee 

6 of such a board, in accordance with subsection (c) 

7 of this section. 

8 (b) POLICY.—The State shall adopt a policy pro9 viding that— 

10 (1) occupational licensing laws should be con11 strued and applied to— 

12 (A) protect public health, safety, and wel13 fare; and 

14 (B) increase economic opportunity, pro15 mote competition, and encourage innovation; 

16 (2) regulators should displace competition 

17 through occupational licensing laws only if less re18 strictive alternatives to occupational licensing will 

19 not suffice to protect consumers from real, substan20 tial threats to public health, safety, or welfare; and 

21 (3) an occupational licensing law should be en22 forced against an individual only to the extent the 

23 individual sells goods or services that are included 

24 explicitly in the statute or regulation that defines 

25 the occupation’s scope of practice. 


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1 (c) ACTIVE SUPERVISION.— 

2 (1) IN GENERAL.—The legislation enacted 

3 under subsection (a)(3) shall satisfy each of the re4 quirements under this subsection. 

5 (2) DAY-TO-DAY SUPERVISION.— 

6 (A) ESTABLISHMENT OF OFFICE OF SU7 PERVISION OF OCCUPATIONAL BOARDS.—The 

8 State shall establish an Office of Supervision of 

9 Occupational Boards (referred to in this sub10 section as the ‘‘Office’’) to review the actions of 

11 occupational licensing boards to ensure compli12 ance with the policy adopted under subsection 

13 (b). 

14 (B) DUTIES.—The Office shall— 

15 (i) review and explicitly approve or re16 ject in writing any occupational regulation 

17 proposed by an occupational licensing 

18 board before the board may adopt or im19 plement the occupational regulation; 

20 (ii) play a substantial role in the de21 velopment of a board’s rules and policies to 

22 ensure they benefit consumers and do not 

23 serve the private interests of providers of 

24 goods and services regulated by the board; 


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1 (iii) disapprove in writing the use of 

2 any board rule or policy relating to an oc3 cupational regulation and terminate any 

4 enforcement action, including any such ac5 tion pending on the date of enactment of 

6 this Act, that is inconsistent with the pol7 icy adopted under subsection (b); 

8 (iv) exercise control over each board 

9 by reviewing and affirmatively approving in 

10 writing only occupational regulations that 

11 are consistent with the policy adopted 

12 under subsection (b); 

13 (v) use the analysis conducted under 

14 paragraph (5) and conduct reasonable in15 vestigations to gain additional information, 

16 including about less restrictive regulatory 

17 approaches, to promote compliance with 

18 subsection (b); 

19 (vi)(I) be staffed by not less than 1 

20 attorney; and 

21 (II) prohibit attorneys working in the 

22 Office from providing general counsel to 

23 any board; and 

24 (vii)(I) approve board actions explic25 itly in writing, rather than implicitly; and 


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1 (II) clearly establish that silence or 

2 inaction does not constitute approval. 

3 (3) INTERNAL REVIEW.— 

4 (A) COMPLAINT.—The State shall estab5 lish a mechanism under which a person who is 

6 a resident of or has a license to operate a busi7 ness in the State may file a complaint with the 

8 Office about an occupational regulation of an 

9 occupational licensing board in the State that 

10 the person believes is inconsistent with the pol11 icy adopted under subsection (b). 

12 (B) OFFICE RESPONSE.—Not later than 

13 90 days after the date on which a person files 

14 a complaint under subparagraph (A), the Office 

15 shall— 

16 (i) investigate the complaint; 

17 (ii) identify remedies and instruct the 

18 board to take action, where appropriate; 

19 and 

20 (iii) respond in writing to the com21 plainant. 

22 (C) REVIEW.—The State shall establish a 

23 mechanism for review of a determination made 

24 by the Office under subparagraph (B), under 

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1 tion to the general division of the trial court of 

2 the State if the challenged occupational regula3 tion would substantially burden the complain4 ant’s ability to— 

5 (i) engage in a lawful occupation; or 

6 (ii) employ or contract other individ7 uals for the performance of a lawful occu8 pation. 

9 (4) RIGHT TO RAISE DEFENSE.— 

10 (A) IN GENERAL.—The State shall author11 ize an individual to assert as a defense, in any 

12 administrative or judicial proceeding to enforce 

13 an occupational regulation, that the regulation 

14 does not comply with the policy adopted under 

15 subsection (b). 

16 (B) PROCEDURES.—In a proceeding de17 scribed in subparagraph (A)— 

18 (i) an individual who asserts a defense 

19 under this paragraph has the initial bur20 den of proof that the occupational regula21 tion being enforced substantially burdens 

22 the individual’s ability to engage in a law23 ful occupation; 

24 (ii) if an individual meets the burden 

25 of proof under clause (i), the State shall be 


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1 required to demonstrate by clear and con2 vincing evidence that the occupational reg3 ulation— 

4 (I) advances an important gov5 ernment interest in protecting against 

6 real, substantial threats to public 

7 health, safety, or welfare; and 

8 (II) is substantially related to 

9 achievement of the important govern10 ment interest described in subclause 

11 (I), in light of the availability of less 

12 restrictive alternatives to occupational 

13 licensing; and 

14 (iii) in reviewing an alleged violation 

15 of the policy adopted under subsection (b), 

16 an administrative agency or a court— 

17 (I) shall make its own findings of 

18 fact and conclusions of law; 

19 (II) may not rely on a legislative 

20 finding of fact presented in admissible 

21 form to the agency or court; and 

22 (III) may not grant any pre23 sumption to a legislative determina24 tion— 


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1 (aa) of harm to public 

2 health, safety, or welfare; or 

3 (bb) that the occupational 

4 regulation is substantially related 

5 to achievement of the important 

6 government interest described in 

7 clause (ii)(I). 

8 (5) PERIODIC ADVISORY REVIEW.— 

9 (A) IN GENERAL.—The State shall estab10 lish a mechanism for periodic non-binding re11 view of existing occupational regulations, and 

12 non-binding review of new proposed occupa13 tional regulations, to ensure that the occupa14 tional regulations comply with the policy adopt15 ed under subsection (b). 

16 (B) SCOPE OF REVIEW.—The entity con17 ducting the review under subparagraph (A)— 

18 (i) shall publish an annual written re19 port encompassing approximately 20 per20 cent of the occupations subject to occupa21 tional regulations within the State, such 

22 that the entity will review all occupational 

23 regulations within the State during each 5- 

24 year period; and 


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1 (ii) shall publish a written report as2 sessing any proposed occupational licensing 

3 law, or other proposed law that would ex4 pand the authority of an occupational li5 censing board to impose occupational regu6 lations, before the proposed law is sub7 mitted to a vote by the State legislature. 

8 (C) REQUIREMENTS FOR ANALYSIS.—In 

9 conducting the review required under subpara10 graph (A), the entity shall— 

11 (i) determine whether the law or other 

12 regulation satisfies the policy adopted 

13 under subsection (b) of using the least re14 strictive regulation necessary to protect 

15 consumers from real, substantial threats to 

16 public health, safety, or welfare; 

17 (ii) evaluate the effects of the law or 

18 other regulation on opportunities for work19 ers, consumer choices and costs, general 

20 unemployment, market competition, gov21 ernmental costs, and other effects; 

22 (iii) compare the law or other regula23 tion to whether and how other States regu24 late the applicable occupation; and 


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1 (iv) if the applicable occupation is 

2 subject to an occupational licensing law, 

3 evaluate— 

4 (I) the feasibility of entering into 

5 reciprocity compacts with one or more 

6 other States to improve worker mobil7 ity and labor market flexibility; and 

8 (II) the advisability of endorsing 

9 occupational licenses granted by other 

10 States to spouses of active service 

11 military members as if those occupa12 tional licenses were granted by the 

13 State conducting the review. 

14 SEC. 406. JUDICIAL REVIEW. 

15 (a) IN GENERAL.—The immunity under section 

16 404(a) shall apply to any action of an occupational licens17 ing board of a State, or any action of a member, officer, 

18 or employee of that board acting in the official capacity 

19 of that member, officer, or employee, if— 

20 (1) the actions of the occupational licensing 

21 board or member, officer, or employee are author22 ized by a non-frivolous interpretation of the occupa23 tional licensing laws of the State; 

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1 dress real, substantial threats to public health, safe2 ty, or welfare, in accordance with section 405(b); 

3 and 

4 (3) the State enacts legislation providing for ju5 dicial review of occupational licensing laws, in ac6 cordance with subsection (b) of this section. 

7 (b) JUDICIAL REVIEW LEGISLATION.—Legislation 

8 enacted by a State under subsection (a)(3)— 

9 (1) shall— 

10 (A) prohibit the State and any occupa11 tional licensing board from imposing an occupa12 tional licensing law unless the State— 

13 (i) identifies an important government 

14 interest in protecting against real, substan15 tial threats to public health, safety, or wel16 fare; and 

17 (ii) demonstrates that the occupa18 tional licensing law is substantially related 

19 to achievement of the important govern20 ment interest described in clause (i), in 

21 light of the availability of less restrictive 

22 alternatives to occupational licensing; 

23 (B) provide an affirmative defense against 

24 enforcement of any occupational licensing law 

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1 quired to demonstrate that the standard under 

2 subparagraph (A) has been met; 

3 (C) establish a cause of action under 

4 which— 

5 (i) a person may bring an action for 

6 injunctive relief against enforcement of an 

7 occupational licensing law of the State; 

8 (ii) the plaintiff bears the initial bur9 den to prove that the challenged occupa10 tional licensing law substantially burdens 

11 the plaintiff’s ability to engage in a lawful 

12 occupation; and 

13 (iii) once the plaintiff makes the ini14 tial showing under clause (ii), the State is 

15 required to demonstrate that the standard 

16 under subparagraph (A) has been met; 

17 (D) provide for an award of reasonable 

18 costs and attorney fees to a person who success19 fully challenges the application of an occupa20 tional licensing law of the State by— 

21 (i) raising an affirmative defense 

22 under subparagraph (B); or 

23 (ii) bringing an action under subpara24 graph (C); and 


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1 (E) provide for independent judicial review 

2 of the occupational licensing laws of the State 

3 to ensure that the standard set forth in sub4 paragraph (A) has been met; and 

5 (2) may not authorize a court to— 

6 (A) uphold enforcement of an occupational 

7 licensing law of the State simply because the 

8 court believes the law is rationally related to a 

9 legitimate governmental purpose; 

10 (B) rely on hypothetical risks to public 

11 safety, not substantiated by evidence in the 

12 record, to uphold enforcement of an occupa13 tional licensing law of the State; 

14 (C) defer to factual or legal conclusions of 

15 another person or entity, rather than exercising 

16 independent review; or 

17 (D) rely on a post hoc justification for the 

18 action of an occupational licensing board that 

19 was not put forward by the board at the time 

20 of the challenged action. 

21 (c) RULE OF CONSTRUCTION.—Nothing in sub22 section (b) shall be construed to require legislation enacted 

23 by a State under subsection (a)(3) to provide a right to 

24 recover monetary damages, other than reasonable costs 

25 and attorney fees as provided under subsection (b)(1)(D). 


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1 TITLE V—OTHER IMPROVE2 MENTS TO ANTITRUST LAWS 

3 SEC. 501. OVERTURNING ILLINOIS BRICK AND HANOVER 

4 SHOE. 

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

6 amended— 

7 (1) in subsection (a), in the first sentence— 

8 (A) by striking ‘‘subsection (b)’’ and in9 serting ‘‘subsections (b) and (c)’’; and 

10 (B) by inserting ‘‘, including an indirect 

11 purchaser,’’ after ‘‘business or property’’; 

12 (2) by redesignating subsection (c) as sub13 section (f); and 

14 (3) by inserting after subsection (b) the fol15 lowing: 

16 ‘‘(c)(1) In the case of a person who was injured by 

17 a violation of the antitrust laws and who resold any prop18 erty or service that was the subject of the violation, the 

19 amount of the damages sustained by the person shall not 

20 include the amount of any overcharge by the defendant 

21 (or portion thereof) that the person passed on to a subse22 quent purchaser of the property or service that was the 

23 subject of the violation. 


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1 ‘‘(2) The defendant shall bear the burden of proving 

2 the amount of any overcharge passed on to a subsequent 

3 purchaser.’’. 

4 SEC. 502. LIMITATIONS ON IMPLIED IMMUNITY FROM THE 

5 ANTITRUST LAWS. 

6 (a) IN GENERAL.—In any action or proceeding to en7 force the antitrust laws with respect to conduct that is 

8 regulated under Federal statute, no court or adjudicatory 

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

10 regulation promulgated in accordance with the Federal 

11 statute, implicitly precludes application of the antitrust 

12 laws to the conduct unless— 

13 (1) a Federal agency or department actively 

14 regulates the conduct under the Federal statute; 

15 (2) the Federal statute does not include any 

16 provision preserving the rights, claims, or remedies 

17 under the applicable antitrust laws or under any 

18 area of law that includes the antitrust laws; and 

19 (3) the Federal agency or department rules or 

20 regulations, adopted by rulemaking or adjudication, 

21 explicitly require or authorize the defendant to un22 dertake the conduct. 

23 (b) EXISTING FEDERAL REGULATION.—In any ac24 tion or proceeding described in subsection (a), the anti25 trust laws shall be applied fully and without qualification 


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

2 be defined more narrowly on account of the existence of 

3 Federal rules, regulations, or regulatory agencies or de4 partments, unless application of the antitrust laws is pre5 cluded or limited by— 

6 (1) an explicit exemption from the antitrust 

7 laws under a Federal statute; or 

8 (2) an implied immunity that satisfies the re9 quirements under subsection (a). 

10 SEC. 503. PREJUDGMENT INTEREST. 

11 Section 4(a) of the Clayton Act (15 U.S.C. 15), as 

12 amended by section 502 of this Act, is amended by strik13 ing ‘‘may sue therefor’’ and all that follows and inserting 

14 ‘‘may sue therefor in any district court of the United 

15 States in the district in which the defendant resides or 

16 is found or has an agent, without respect to the amount 

17 in controversy, and shall recover threefold the damages by 

18 him sustained, the cost of suit, including a reasonable at19 torney’s fee, and simple interest on threefold the damages 

20 by him sustained for the period beginning on the date of 

21 service of such person’s pleading setting forth a claim 

22 under the antitrust laws and ending on the date of judg23 ment.’’. 


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1 SEC. 504. SAFE HARBOR FOR EFFORTS TO FACILITATE 

2 DATA PORTABILITY AND INTEROPERABILITY. 

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

4 (b), it shall not constitute a violation of the antitrust laws 

5 for 2 or more persons providing comparable interactive 

6 computer services (as defined in section 230(f) of the 

7 Communications Act of 1934 (47 U.S.C. 230(f))) to enter 

8 into a joint venture or similar partnership to create stand9 ard protocols for data portability or interoperability be10 tween the interactive computer services if— 

11 (1) the joint venture or similar partnership does 

12 not exclude from the joint venture or similar part13 nership any person that offers comparable inter14 active computer services; and 

15 (2) the standard protocols do not restrict com16 petition in any market. 

17 (b) EXCEPTION FOR PER SE VIOLATIONS.—Sub18 section (a) shall not apply to conduct constituting a per 

19 se violation of section 1 of the Sherman Act (15 U.S.C. 

20 1). 

21 SEC. 505. STUDY OF ASSIGNING ALL ANTITRUST CASES TO 

22 CERTAIN DISTRICT COURTS OF THE UNITED 

23 STATES. 

24 Not later than 1 year after the date of enactment 

25 of this Act, the Director of the Administrative Office of 

26 the United States Courts shall submit to Congress a reVerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039

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1 port reviewing the feasibility, possible benefits, and poten2 tial harms of establishing a program to designate certain 

3 district courts of the United States that will hear cases 

4 raising 1 or more claims under the antitrust laws. 

5 SEC. 506. BALANCING HARM AND BENEFITS. 

6 The Clayton Act (15 U.S.C. 12 et seq.) is amended— 

7 (1) by redesignating section 28 (15 U.S.C. 27) 

8 as section 31; and 

9 (2) by inserting after section 27 the following: 

10 ‘‘SEC. 28. BALANCING HARM AND BENEFITS. 

11 ‘‘(a) IN GENERAL.—In any civil action brought under 

12 this Act or the Sherman Act (15 U.S.C. 1 et seq.), a court 

13 may consider a benefit, efficiency, or other mitigating fac14 tor only to the degree that it— 

15 ‘‘(1) is tied to the market in which competition 

16 or consumers are harmed; 

17 ‘‘(2) can reasonably be achieved only through 

18 the conduct or transaction at issue; 

19 ‘‘(3) is reasonably quantifiable; 

20 ‘‘(4) will accrue to the consumer; and 

21 ‘‘(5) has a high likelihood of being achieved. 

22 ‘‘(b) EXAMINATION OF COMPETITIVE EFFECTS.—In 

23 examining the competitive effects of conduct or a trans24 action challenged under any of the antitrust laws, a court 

25 shall consider exclusively the effects of the challenged conVerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039

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1 duct or transaction on consumer welfare, including price, 

2 output, quality, innovation, and consumer choice. 

3 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this sec4 tion shall be construed to require that, in the aggregate, 

5 in-market benefits, efficiencies, or mitigating factors out6 number or outweigh any out-of-market benefits, effi7 ciencies, or mitigating factors. 

8 ‘‘(d) DEFINITION OF CONSUMER.—In this section, 

9 the term ‘consumer’ includes buyers and sellers.’’. 

10 SEC. 507. ACTIONS ON BEHALF OF CONSUMERS UNDER 

11 SHERMAN ACT. 

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

13 amended— 

14 (1) by inserting after subsection (c), as added 

15 by section 501 of this Act, the following: 

16 ‘‘(d)(1) The Assistant Attorney General may bring an 

17 action on behalf of persons in the United States injured 

18 in their business or property by reason of anything forbid19 den under the Sherman Act (15 U.S.C. 1 et seq.) in any 

20 district court of the United States in the district in which 

21 the defendant resides or is found or has an agent, without 

22 respect to the amount in controversy, and shall recover 

23 threefold the damages sustained by such persons, and the 

24 cost of suit, including a reasonable attorney’s fee. 


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1 ‘‘(2)(A) The court may award under this subsection, 

2 pursuant to a motion by the Assistant Attorney General 

3 promptly made, simple interest on actual damages in ac4 cordance with the requirements under subsection (a). 

5 ‘‘(B) A court may not award any damages under this 

6 subsection that are duplicative of damages awarded before 

7 the date of the award under this subsection in a separate 

8 civil action pertaining to the same conduct and injured 

9 party. 

10 ‘‘(C) A court awarding damages to a person in a civil 

11 action after the date of an award of damages under this 

12 subsection that would be duplicative of damages awarded 

13 to the Assistant Attorney General on behalf of the person 

14 shall direct that such damages shall first be paid by the 

15 Assistant Attorney General from amounts in the Fund 

16 and, to the extent such damages are not fully paid from 

17 amounts in the Fund, shall be paid by the defendant. 

18 ‘‘(3)(A) There is established in the Treasury of the 

19 United States a fund to be known as the ‘Antitrust Con20 sumer Damages Fund’ (in this subsection referred to as 

21 the ‘Fund’), which shall consist of amounts deposited 

22 under subparagraph (B). 

23 ‘‘(B) Notwithstanding section 3302 of title 31, 

24 United States Code, any amounts received by the AssistVerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039

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1 ant Attorney General under an award under this sub2 section— 

3 ‘‘(i) shall be deposited in the Fund; and 

4 ‘‘(ii) shall be available to the Assistant Attorney 

5 General, without further appropriation, for distribu6 tion to persons in the United States harmed by the 

7 applicable violation of the Sherman Act (15 U.S.C. 

8 1 et seq.). 

9 ‘‘(4) Effective on the day after the date that is 10 

10 years after the date on which an award is received under 

11 this subsection, the unobligated balances in the Fund of 

12 amounts that were received under the award are rescinded 

13 and shall be deposited in the general fund of the Treas14 ury.’’; and 

15 (2) in subsection (f), as so redesignated by sec16 tion 501 of this Act— 

17 (A) by redesignating paragraphs (1) and 

18 (2) as paragraphs (2) and (3), respectively; and 

19 (B) by inserting before paragraph (1) the 

20 following: 

21 ‘‘(1) the term ‘Assistant Attorney General’ 

22 means the Assistant Attorney General in charge of 

23 the Antitrust Division of the Department of Jus24 tice;’’. 


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1 SEC. 508. CIVIL FINES FOR KNOWING VIOLATIONS OF THE 

2 ANTITRUST LAWS. 

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

4 amended by inserting after subsection (d), as added by 

5 section 507 of this Act, the following: 

6 ‘‘(e)(1) In this subsection, the term ‘covered antitrust 

7 laws’ means any provision of the antitrust laws, other than 

8 section 7 of this Act. 

9 ‘‘(2)(A) In an action brought by the Assistant Attor10 ney General in an appropriate district court of the United 

11 States, the court may impose a civil fine against any per12 son who engaged in a knowing violation of any provision 

13 of the covered antitrust laws. 

14 ‘‘(B) The maximum amount of a civil fine imposed 

15 on a person under subparagraph (A) shall be 15 percent 

16 of the total of the gross income of the person from the 

17 line of business at issue during each year during which 

18 the person engaged in the violation. 

19 ‘‘(3) A civil fine under paragraph (2) shall be in addi20 tion to any damages awarded or other remedy imposed 

21 in connection with the violation of the provision of the cov22 ered antitrust laws.’’. 


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1 SEC. 509. DIRECT EVIDENCE OF INTENT TO AVOID OR RE2 STRICT COMPETITION. 

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

4 by inserting after section 28, as added by section 506 of 

5 this Act, the following: 

6 ‘‘SEC. 29. DIRECT EVIDENCE OF INTENT TO AVOID OR RE7 STRICT COMPETITION. 

8 ‘‘In any civil action brought under this Act or the 

9 Sherman Act (15 U.S.C. 1 et seq.), if there is direct evi10 dence that the conduct or transaction at issue was under11 taken with the clear intent to harm or prevent competi12 tion, which shall not require proof that the person know13 ingly violated the antitrust laws, the court shall deem the 

14 conduct or transaction to be anticompetitive.’’. 

15 SEC. 510. LIMIT ON CONTRACTING. 

16 The head of an Executive agency may not award a 

17 contract for the procurement of goods or services to any 

18 person that has been found by a trier of fact in a court 

19 of competent jurisdiction to have violated any of the anti20 trust laws, except for section 7 of the Clayton Act (15 

21 U.S.C. 18), on or after the date that is 5 years before 

22 the date on which the procurement process for the goods 

23 or services begins. 


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1 SEC. 511. PROHIBITING DISCRIMINATION IN DISTRIBU2 TION. 

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

4 by inserting after section 29, as added by section 509 of 

5 this Act, the following: 

6 ‘‘SEC. 30. PROHIBITING DISCRIMINATION IN DISTRIBUTION. 

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

8 ‘‘(1) DISTRIBUTED PRODUCT.—The term ‘dis9 tributed product’ means a good or service that is 

10 distributed by a person other than the person which 

11 manufactures or provides the good or service. 

12 ‘‘(2) DISTRIBUTION MARKET.—The term ‘dis13 tribution market’ means the geographic and product 

14 markets for the distribution of a distributed product. 

15 ‘‘(b) DISCRIMINATION BY PERSONS WITH MONOP16 OLY POWER.—A person with monopoly power in a dis17 tribution market, that also offers a product or service that 

18 competes with a distributed product in the distribution 

19 market in which it has monopoly power, may not engage 

20 in discrimination in that distribution market that harms 

21 competition in the market for the distributed product.’’. 

22 SEC. 512. AUTHORIZATIONS OF APPROPRIATIONS. 

23 There is authorized to be appropriated for the Anti24 trust Division of the Department of Justice $600,000,000 

25 for fiscal year 2022. 

Æ 


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