II 

117TH CONGRESS 

1ST SESSION S. 225 

To reform the antitrust laws to better protect competition in the American 

economy, to amend the Clayton Act to modify the standard for an 

unlawful acquisition, to deter anticompetitive exclusionary conduct that 

harms competition and consumers, to enhance the ability of the Department of Justice and the Federal Trade Commission to enforce the antitrust laws, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 4, 2021 

Ms. KLOBUCHAR (for herself, Mr. BLUMENTHAL, Mr. BOOKER, Mr. MARKEY, 

and Mr. SCHATZ) introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL 

To reform the antitrust laws to better protect competition 

in the American economy, to amend the Clayton Act 

to modify the standard for an unlawful acquisition, to 

deter anticompetitive exclusionary conduct that harms 

competition and consumers, to enhance the ability of 

the Department of Justice and the Federal Trade Commission to enforce the antitrust laws, and for other purposes. 

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


pamtmann on DSKBC07HB2PROD with BILLS
2 

•S 225 IS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Competition and Anti3 trust Law Enforcement Reform Act of 2021’’. 

4 SEC. 2. FINDINGS AND PURPOSES. 

5 (a) FINDINGS.—Congress finds that— 

6 (1) competitive markets, in which multiple 

7 firms compete to buy and sell products and services, 

8 are critical to ensuring economic opportunity for all 

9 people in the United States and providing resilience 

10 to the economy during unpredictable times; 

11 (2) when companies compete, businesses offer 

12 the highest quality and choice of goods and services 

13 for the lowest possible prices to consumers and other 

14 businesses; 

15 (3) competition fosters small business growth, 

16 reduces economic inequality, and spurs innovation 

17 and job creation; 

18 (4) in the United States economy today, the 

19 presence and exercise of market power is substantial 

20 and growing; 

21 (5) the presence and exercise of market power 

22 makes it more difficult for people in the United 

23 States to start their own businesses, depresses 

24 wages, and increases economic inequality, with par25 ticularly damaging effects on historically disadvan26 taged communities; 


pamtmann on DSKBC07HB2PROD with BILLS
3 

•S 225 IS

1 (6) market power and undue market concentra2 tion contribute to the consolidation of political 

3 power, undermining the health of democracy in the 

4 United States; 

5 (7) the anticompetitive effects of monopoly 

6 power or buyer market power include higher prices, 

7 lower quality, lessened choice, reduced innovation, 

8 foreclosure of competitors, and increased entry bar9 riers; 

10 (8) monopsony power or seller market power al11 lows a firm to force suppliers of goods or services to 

12 accept below market prices or to force workers to ac13 cept below market wages, resulting in lower quality 

14 products and services, reduced opportunities for sup15 pliers and workers, reduced availability of products 

16 and services for consumers, reduced innovation, fore17 closure of competitors, and increased entry barriers; 

18 (9) horizontal consolidation, vertical consolida19 tion, and conglomerate mergers all have potential to 

20 increase market power and cause anticompetitive 

21 harm; 

22 (10) extensive consolidation is reducing com23 petition and threatens to place the American dream 

24 further out of reach for many consumers in the 

25 United States; 


pamtmann on DSKBC07HB2PROD with BILLS
4 

•S 225 IS

1 (11) since 2008, firms in the United States 

2 have engaged in over $10,000,000,000,000 in merg3 ers and acquisitions; 

4 (12) the acquisition of nascent or potential ri5 vals by dominant firms can present significant long6 term threats to competition and innovation; 

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

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

9 market—by using an innovative business model or 

10 technology, offering lower prices or new, different 

11 products or services products, or by other means 

12 that benefit consumers—can present a threat to 

13 competition; 

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

15 18), is the primary line of defense against anti16 competitive mergers; 

17 (15) in recent years, some court decisions and 

18 enforcement policies have limited the vitality of the 

19 Clayton Act to prevent harmful consolidation by— 

20 (A) discounting previously accepted pre21 sumptions that certain acquisitions are anti22 competitive; 

23 (B) focusing inordinately on the effect of 

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


pamtmann on DSKBC07HB2PROD with BILLS
5 

•S 225 IS

1 exclusion of other potential anticompetitive ef2 fects; 

3 (C) underestimating the dangers that hori4 zontal, vertical, and conglomerate mergers will 

5 lower quality, reduce choice, impede innovation, 

6 exclude competitors, increase entry barriers, or 

7 create buyer power, including monopsony 

8 power; and 

9 (D) requiring the government to prove 

10 harmful effects of a proposed merger to a near 

11 certainty; 

12 (16) anticompetitive exclusionary conduct con13 stitutes a particularly harmful exercise of market 

14 power and a substantial threat to the United States 

15 economy; 

16 (17) when dominant sellers exercise market 

17 power, they harm buyers by overcharging them, re18 ducing product or service quality, limiting their 

19 choices, and impairing innovation; 

20 (18) when dominant buyers exercise market 

21 power, they harm suppliers by underpaying them, 

22 limiting their business opportunities, and impairing 

23 innovation; 

24 (19) when dominant employers exercise market 

25 power, they harm workers by paying them low 


pamtmann on DSKBC07HB2PROD with BILLS
6 

•S 225 IS

1 wages, reducing their benefits, and limiting their fu2 ture employment opportunities; 

3 (20) nascent or potential rivals—even those 

4 that are unprofitable or inefficient—can be an im5 portant source of competitive discipline for dominant 

6 firms; 

7 (21) antitrust enforcement against anticompeti8 tive exclusionary conduct has been impeded when 

9 courts have declined to rigorously examine the facts 

10 in favor of relying on inaccurate economic assump11 tions that are inconsistent with contemporary eco12 nomic learning, such as presuming that market 

13 power is not durable and can be expected to self-cor14 rect, that monopolies can drive as much or more in15 novation than a competitive market, that above-cost 

16 pricing cannot harm competition, and other flawed 

17 assumptions; 

18 (22) the courts of the United States have im19 properly implied immunity from the antitrust laws 

20 based on Federal regulatory statutes, even limiting 

21 the application of statutory antitrust savings clauses 

22 passed by Congress; 

23 (23) the civil remedies currently available to 

24 cure violations of the Sherman Antitrust Act, includ25 ing injunctions, equitable monetary relief, and priVerDate Sep 11 2014 19:24 Feb 25, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S225.IS S225

pamtmann on DSKBC07HB2PROD with BILLS
7 

•S 225 IS

1 vate damages, have not proven sufficient, on their 

2 own, to deter anticompetitive conduct; 

3 (24) in some cases, effective deterrence requires 

4 the imposition of civil penalties, alone or in combina5 tion with existing remedies, including structural re6 lief, behavioral relief, private damages, and equitable 

7 monetary relief, including disgorgement and restitu8 tion; and 

9 (25) Federal antitrust enforcement budgets 

10 have failed to keep pace with the growth of the econ11 omy and increasing demands on agency resources, 

12 significantly undermining the ability of the Federal 

13 antitrust agencies to fulfill their law enforcement 

14 missions and contributing to the rise of market 

15 power in the American economy. 

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

17 (1) enhance competition throughout the Amer18 ican economy by strengthening antitrust enforce19 ment by the Department of Justice, the Federal 

20 Trade Commission, the State enforcement agencies, 

21 and private parties; 

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

23 the Clayton Act to better enable enforcers to arrest 

24 the likely anticompetitive effects of harmful mergers 

25 in their incipiency, as Congress intended, by clariVerDate Sep 11 2014 19:24 Feb 25, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S225.IS S225

pamtmann on DSKBC07HB2PROD with BILLS
8 

•S 225 IS

1 fying that the potential effects that may justify pro2 hibiting a merger under the Clayton Act include 

3 lower quality, reduced choice, reduced innovation, 

4 the exclusion of competitors, or increased entry bar5 riers, in addition to increased price to buyers or re6 duced price to sellers; 

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

8 acquisition that tends to create a monopsony violates 

9 the Clayton Act; 

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

11 that require the parties to certain acquisitions that 

12 either significantly increase concentration or are ex13 tremely large bear the burden of establishing that 

14 the acquisition will not materially harm competition; 

15 (5) prohibit and deter exclusionary conduct that 

16 harms competition, particularly by dominant firms; 

17 (6) enable the Department of Justice and the 

18 Federal Trade Commission to seek civil monetary 

19 penalties, in addition to existing remedies, for viola20 tions of the Sherman Act; 

21 (7) give the Department of Justice and the 

22 Federal Trade Commission additional financial re23 sources and enforcement tools to craft remedies for 

24 individual violations that are effective to deter future 


pamtmann on DSKBC07HB2PROD with BILLS
9 

•S 225 IS

1 unlawful conduct and proportionate to the gravity of 

2 the violation; 

3 (8) provide further protections for those who 

4 provide evidence of anticompetitive conduct to gov5 ernment enforcers and potential financial rewards 

6 for whistleblowers who provide information to the 

7 government that leads to a criminal fine; and 

8 (9) grant successful antitrust plaintiffs the 

9 right to obtain prejudgment interest on damages 

10 awards to further deter anticompetitive conduct and 

11 more fully compensate injured parties. 

12 SEC. 3. DEFINITION. 

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

14 (1) has the meaning given the term in the first 

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

16 (2) includes— 

17 (A) section 5 of the Federal Trade Com18 mission Act (15 U.S.C. 45) to the extent that 

19 such section applies to unfair methods of com20 petition; and 

21 (B) this Act and the amendments made by 

22 this Act. 


pamtmann on DSKBC07HB2PROD with BILLS
10 

•S 225 IS

1 SEC. 4. UNLAWFUL ACQUISITIONS. 

2 (a) MARKET POWER.—Section 1(a) of the Clayton 

3 Act (15 U.S.C. 12(a)) is amended by adding at the end 

4 the following: 

5 ‘‘the term ‘market power’ in this Act means the 

6 ability of a person, or a group of persons acting in 

7 concert, to profitably impose terms or conditions on 

8 counterparties, including terms regarding price, 

9 quantity, product or service quality, or other terms 

10 affecting the value of consideration exchanged in the 

11 transaction, that are more favorable to the person or 

12 group of persons imposing them than what the per13 son or group of persons could obtain in a competi14 tive market.’’. 

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

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

17 (1) in the first and second undesignated para18 graphs, by striking ‘‘substantially to lessen’’ each 

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

20 appreciable risk of materially lessening’’; 

21 (2) by inserting ‘‘or a monopsony’’ after ‘‘mo22 nopoly’’ each place that term appears; and 

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

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

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

26 shall determine that the effect of an acquisition described 


pamtmann on DSKBC07HB2PROD with BILLS
11 

•S 225 IS

1 in this section may be to create an appreciable risk of ma2 terially lessening competition or to tend to create a monop3 oly or a monopsony, in or affecting commerce, if— 

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

5 increase in market concentration in any relevant 

6 market; 

7 ‘‘(2)(A) the acquiring person has a market 

8 share of greater than 50 percent or otherwise has 

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

10 any relevant market, and as a result of the acquisi11 tion, the acquiring person would obtain control over 

12 entities or assets that compete or have a reasonable 

13 probability of competing with the acquiring person 

14 in the same relevant market; or 

15 ‘‘(B) as a result of the acquisition, the acquir16 ing person would obtain control over entities or as17 sets that have a market share of greater than 50 

18 percent or otherwise have significant market power, 

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

20 the acquiring person competes or has a reasonable 

21 probability of competing with the entities or assets 

22 over which it would obtain control, as result of the 

23 acquisition, in the same relevant market; 

24 ‘‘(3) the acquisition would lead to the combina25 tion of entities or assets that compete or have a reaVerDate Sep 11 2014 19:24 Feb 25, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S225.IS S225

pamtmann on DSKBC07HB2PROD with BILLS
12 

•S 225 IS

1 sonable probability of competing in a relevant mar2 ket, and either the acquiring person or the entities 

3 or assets over which it would obtain control pre4 vents, limits, or disrupts coordinated interaction 

5 among competitors in a relevant market or has a 

6 reasonable probability of doing so; 

7 ‘‘(4) the acquisition— 

8 ‘‘(A) would likely enable the acquiring per9 son to unilaterally and profitably exercise mar10 ket power or materially increase its ability to do 

11 so; or 

12 ‘‘(B) would materially increase the prob13 ability of coordinated interaction among com14 petitors in any relevant market; or 

15 ‘‘(5)(A) the acquisition is not a transaction that 

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

17 ‘‘(B)(i) as a result of such acquisition, the ac18 quiring person would hold an aggregate total 

19 amount of the voting securities and assets of the ac20 quired person in excess of $5,000,000,000 (as ad21 justed and published for each fiscal year beginning 

22 after September 30, 2022, in the same manner as 

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

24 change in the gross national product for such fiscal 


pamtmann on DSKBC07HB2PROD with BILLS
13 

•S 225 IS

1 year compared to the gross national product for the 

2 year ending September 30, 2021); or 

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

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

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

6 adjusted and published); and 

7 ‘‘(II) as a result of such acquisition, the acquir8 ing person would hold an aggregate total amount of 

9 the voting securities and assets of the acquired per10 son in excess of $50,000,000 (as so adjusted and 

11 published), 

12 unless the acquiring or acquired person establish, by 

13 a preponderance of the evidence, that the effect of 

14 the acquisition will not be to create an appreciable 

15 risk of materially lessening competition or tend to 

16 create a monopoly or a monopsony. In this para17 graph, the term ‘materially’ means more than a de 

18 minimis amount.’’. 

19 SEC. 5. POST-SETTLEMENT DATA. 

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

21 amended by adding at the end the following: 

22 ‘‘(l)(1) Each person who enters into an agreement 

23 with the Federal Trade Commission or the United States 

24 to resolve a proceeding brought under the antitrust laws 

25 or under the Federal Trade Commission Act (15 U.S.C. 


pamtmann on DSKBC07HB2PROD with BILLS
14 

•S 225 IS

1 41 et seq.) regarding an acquisition with respect to which 

2 notification is required under this section shall, on an an3 nual basis during the 5-year period beginning on the date 

4 on which the agreement is entered into, submit to the Fed5 eral Trade Commission or the Assistant Attorney General, 

6 as applicable, information sufficient for the Federal Trade 

7 Commission or the United States, as applicable, to assess 

8 the competitive impact of the acquisition, including— 

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

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

11 that was covered by the agreement; 

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

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

14 benefits to consumers or trading partners that were 

15 claimed as a benefit of the acquisition and the extent 

16 to which any cost savings were passed on to con17 sumers or trading partners; and 

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

19 conditions placed on the acquisition in fully restoring 

20 competition. 

21 ‘‘(2) The requirement to provide the information de22 scribed in paragraph (1) shall be included in an agreement 

23 described in that paragraph. 

24 ‘‘(3) The Federal Trade Commission, with the con25 currence of the Assistant Attorney General, by rule in acVerDate Sep 11 2014 19:24 Feb 25, 2021 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S225.IS S225

pamtmann on DSKBC07HB2PROD with BILLS
15 

•S 225 IS

1 cordance with section 553 of title 5, United States Code, 

2 and consistent with the purposes of this section— 

3 ‘‘(A) shall require that the information de4 scribed in paragraph (1) be in such form and con5 tain such documentary material and information rel6 evant to an acquisition as is necessary and appro7 priate to enable the Federal Trade Commission and 

8 the Assistant Attorney General to assess the com9 petitive impact of the acquisition under paragraph 

10 (1); and 

11 ‘‘(B) may— 

12 ‘‘(i) define the terms used in this sub13 section; 

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

15 section, information not relevant in assessing 

16 the competitive impact of the acquisition under 

17 paragraph (1); and 

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

19 necessary and appropriate to carry out the pur20 poses of this section.’’. 

21 SEC. 6. FEDERAL TRADE COMMISSION STUDY. 

22 Not later than 2 years after the date of enactment 

23 of this Act, the Federal Trade Commission, in consulta24 tion with the Securities and Exchange Commission, shall 

25 conduct and publish a study, using any compulsory procVerDate Sep 11 2014 19:24 Feb 25, 2021 Jkt 019200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S225.IS S225

pamtmann on DSKBC07HB2PROD with BILLS
16 

•S 225 IS

1 ess necessary, relying on public data and information if 

2 available and sufficient, and incorporating public comment 

3 on— 

4 (1) the extent to which an institutional investor 

5 or related institutional investors have ownership or 

6 control interests in competitors in moderately con7 centrated or concentrated markets; 

8 (2) the economic impacts of such overlapping 

9 ownership or control; and 

10 (3) the mechanisms by which an institutional 

11 investor could affect competition among the compa12 nies in which it invests and whether such mecha13 nisms are prevalent. 

14 SEC. 7. GAO STUDIES. 

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

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

17 of the United States shall— 

18 (1) conduct a study to assess the success of 

19 merger remedies required by the Department of Jus20 tice or the Federal Trade Commission in consent de21 crees entered into since 6 years prior to the date of 

22 enactment of this Act, including the impact on main23 taining competition, a comparison of structural and 

24 conduct remedies, and the viability of divested as25 sets; and 


pamtmann on DSKBC07HB2PROD with BILLS
17 

•S 225 IS

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

2 and acquisitions on wages, employment, innovation, 

3 and new business formation. 

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

5 United States shall— 

6 (1) update the study under paragraph (1) 3 

7 years and 6 years after the date of enactment of this 

8 Act based on the information provided under section 

9 7A(l) of the Clayton Act, as added by section 5 of 

10 this Act; and 

11 (2) identify specific remedies or alleged merger 

12 benefits that require additional information or re13 search. 

14 SEC. 8. OFFICE OF COMPETITION ADVOCATE. 

15 (a) DEFINITIONS.—In this section— 

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

17 the term in section 551 of title 5, United States 

18 Code; 

19 (2) the term ‘‘covered company’’ means any 

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

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

22 (15 U.S.C. 18a); 

23 (3) the term ‘‘Office’’ means the Office of the 

24 Competition Advocate established under subsection 

25 (b); 


pamtmann on DSKBC07HB2PROD with BILLS
18 

•S 225 IS

1 (4) the term ‘‘Chairman’’ means the Chairman 

2 of the Commission; and 

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

4 Trade Commission. 

5 (b) ESTABLISHMENT.—There is established within 

6 the Federal Trade Commission the Office of the Competi7 tion Advocate. 

8 (c) COMPETITION ADVOCATE.— 

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

10 be the Competition Advocate, who shall— 

11 (A) report directly to the Chairman; and 

12 (B) be appointed by the Chairman, with 

13 the concurrence of a majority of the Commis14 sion, including at least 1 Commissioner who is 

15 not a member of the same political party of the 

16 majority members of the Commission, from 

17 among individuals having experience in advo18 cating for the promotion of competition. 

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

20 for the Competition Advocate shall be equal to the 

21 highest rate of annual pay for other senior execu22 tives who report to the Chairman of the Commis23 sion. 


pamtmann on DSKBC07HB2PROD with BILLS
19 

•S 225 IS

1 (3) LIMITATION ON SERVICE.—An individual 

2 who serves as the Competition Advocate may not be 

3 employed by the Commission— 

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

5 date of appointment as Competition Advocate; 

6 or 

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

8 the date on which the person ceases to serve as 

9 the Competition Advocate. 

10 (d) STAFF OF OFFICE.—The Competition Advocate, 

11 after consultation with the Chairman of the Commission, 

12 shall retain or employ independent counsel, research staff, 

13 and service staff, as the Competition Advocate determines 

14 is necessary to carry out the functions, powers, and duties 

15 of the Office. 

16 (e) DUTIES AND POWERS.—The Competition Advo17 cate shall— 

18 (1) recommend processes or procedures that 

19 will allow the Federal Trade Commission and the 

20 Antitrust Division of the Department of Justice to 

21 improve the ability of each agency to solicit reports 

22 from consumers, small businesses, and employees 

23 about possible anticompetitive practices or adverse 

24 effects of concentration; 


pamtmann on DSKBC07HB2PROD with BILLS
20 

•S 225 IS

1 (2) publicly provide recommendations to other 

2 Federal agencies about administrative actions that 

3 may have anticompetitive effects and the potential 

4 harm to competition if those actions are carried out; 

5 (3) provide recommendations to other Federal 

6 agencies about administrative actions that may have 

7 procompetitive effects and the potential benefit to 

8 competition if those actions are carried out; 

9 (4) publish periodic reports on— 

10 (A) market competition and its impact on 

11 the United States, local geographic areas, and 

12 different demographic and socioeconomic 

13 groups; and 

14 (B) the success of remedies required by the 

15 Department of Justice or the Federal Trade 

16 Commission in consent decrees; 

17 (5) collect data regarding concentration levels 

18 across industries and the impact and degree of anti19 trust enforcement; and 

20 (6) standardize the types and formats of data 

21 reported and collected. 

22 (f) SUBPOENA AUTHORITY.— 

23 (1) IN GENERAL.—The Competition Advocate 

24 may either require the submission of or accept vol25 untary submissions of periodic and other reports 


pamtmann on DSKBC07HB2PROD with BILLS
21 

•S 225 IS

1 from any covered company for the purpose of assess2 ing competition and its impact on the United States, 

3 local geographic areas, and different demographic 

4 and socioeconomic groups. 

5 (2) WRITTEN FINDING.—Before issuing a sub6 poena to collect the information described in para7 graph (1), the Competition Advocate shall make a 

8 written finding that— 

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

10 functions of the Competition Advocate; and 

11 (B) the information is not available from a 

12 public source or another agency. 

13 (3) MITIGATION OF REPORT BURDEN.—Before 

14 requiring the submission of a report from any com15 pany required to make a filing under section 7A of 

16 the Clayton Act (15 U.S.C. 18a), the Competition 

17 Advocate shall— 

18 (A) coordinate with other agencies or au19 thority; and 

20 (B) whenever possible, rely on information 

21 available from such agencies or authority. 

22 (g) DATA CENTER.— 

23 (1) ESTABLISHMENT.—There is established 

24 within the Office the Data Center. 

25 (2) DUTIES.—The Data Center shall— 


pamtmann on DSKBC07HB2PROD with BILLS
22 

•S 225 IS

1 (A) collect, validate, and maintain data ob2 tained from agencies, as defined in section 551 

3 of title 5, United States Code, commercial data 

4 providers, publicly available data sources, and 

5 any covered company; and 

6 (B) prepare and publish, in a manner that 

7 is easily accessible to the public— 

8 (i) a concentration database; 

9 (ii) a merger enforcement database; 

10 (iii) any other database that the Com11 petition Advocate determines is necessary 

12 to carry out the duties of the Office; and 

13 (iv) the format and standards for Of14 fice data, including standards for reporting 

15 financial transaction and position data to 

16 the Office. 

17 (3) REGULATIONS.—The Competition Advocate 

18 shall promulgate regulations relating to the collec19 tion and standardizing of data under paragraph (2). 

20 (4) CONFIDENTIALITY.— 

21 (A) IN GENERAL.—The Data Center may 

22 not disclose any confidential data collected 

23 under paragraph (2). 

24 (B) REQUIREMENTS.—Data obtained from 

25 an agency shall be subject to the same confidenVerDate Sep 11 2014 19:24 Feb 25, 2021 Jkt 019200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S225.IS S225

pamtmann on DSKBC07HB2PROD with BILLS
23 

•S 225 IS

1 tiality requirements and protection as the agen2 cy providing the data. 

3 (C) INFORMATION SECURITY.—The Com4 petition Advocate shall ensure that data col5 lected and maintained by the Data Center are 

6 kept secure and protected against unauthorized 

7 disclosure. 

8 (h) DIVISION OF MARKET ANALYSIS.— 

9 (1) ESTABLISHMENT.—There is established 

10 within the Office the Division of Market Analysis. 

11 (2) LEADERSHIP.—The head of the Division of 

12 Market Analysis shall be the Director of Market 

13 Analysis, who shall— 

14 (A) report directly to the Competition Ad15 vocate; and 

16 (B) be appointed by the Competition Advo17 cate, with the concurrence of a majority of the 

18 Commission, including at least one Commis19 sioner who is not a member of the same polit20 ical party of the majority members of the Com21 mission. 

22 (3) DIVISION STAFF.—The Division of Market 

23 Analysis shall retain or employ independent legal, 

24 economic, research, and service staff sufficient to 


pamtmann on DSKBC07HB2PROD with BILLS
24 

•S 225 IS

1 carry out the functions, powers, and duties of the 

2 Division. 

3 (4) DUTIES AND POWERS.—The Division of 

4 Market Analysis— 

5 (A) shall, at the direction of the Competi6 tion Advocate or the Commission, conduct in7 vestigations of markets or industry sectors to 

8 analyze the competitive conditions and dynam9 ics affecting such markets or industry sectors, 

10 including the effects that market concentration, 

11 mergers and acquisitions, certain types of 

12 agreements, and other forms of business con13 duct have on competition, consumers, workers 

14 and innovation, and shall publish reports on the 

15 results of such investigations; 

16 (B) shall, at the direction of the Competi17 tion Advocate or the Commission, conduct in18 vestigations concerning the competitive effects 

19 of acquisitions that have been consummated no 

20 less than 2 years prior to the start of the inves21 tigation, which shall include recommendations 

22 concerning appropriate enforcement action to 

23 remedy any anticompetitive effects discovered 

24 and may include assessments of— 


pamtmann on DSKBC07HB2PROD with BILLS
25 

•S 225 IS

1 (i) the conditions of the relevant mar2 kets affected by the acquisition, over the 

3 period since the acquisition was con4 summated, including, but not limited to, 

5 the potential impact that the acquisition 

6 has had on— 

7 (I) the prices of goods or serv8 ices, including wages in any affected 

9 labor markets; 

10 (II) the output and quality of 

11 goods and services; 

12 (III) the entry or exit of competi13 tors; 

14 (IV) innovation; 

15 (V) consumer choice and product 

16 variety; 

17 (VI) the opportunity of suppliers 

18 and works to sell their product or 

19 services; 

20 (VII) coordinated interaction be21 tween competitors; and 

22 (VIII) subsequent mergers and 

23 acquisitions activity; 

24 (ii) whether the acquiring person or 

25 its successors in interest— 


pamtmann on DSKBC07HB2PROD with BILLS
26 

•S 225 IS

1 (I) complied with all obligations 

2 under any agreement with the Federal 

3 Trade Commission, the United States, 

4 or State law enforcement authorities 

5 to resolve a proceeding brought under 

6 the antitrust laws; and 

7 (II) achieved measurable, trans8 action-specific efficiencies, which did 

9 not arise from anticompetitive reduc10 tions of output, as a result of the ac11 quisition; and 

12 (iii) whether any agreements with the 

13 Federal Trade Commission or the United 

14 States to resolve a proceeding brought 

15 under the antitrust laws regarding the ac16 quisition was effective in mitigating the 

17 anticompetitive effects from the acquisi18 tion; 

19 (C) shall rely on public data and informa20 tion, public comment, information from other 

21 Federal agencies, information from the Data 

22 Center, information obtained pursuant to the 

23 Competition Advocate’s subpoena authority 

24 under subsection (f) of this section and may use 

25 compulsory process under section 6(b) of the 


pamtmann on DSKBC07HB2PROD with BILLS
27 

•S 225 IS

1 Federal Trade Commission Act (15 U.S.C. 

2 46(b)) as necessary to carry out the functions 

3 set forth in subsections (h)(3)(A) and (h)(3)(B) 

4 of this section; and 

5 (D) shall report any evidence it obtains 

6 that any person, partnership, or corporation has 

7 engaged in transactions or conduct that may 

8 constitute of a violation of the antitrust law to 

9 the Commission, which may institute further in10 vestigation, initiate enforcement proceedings, or 

11 refer such evidence to the Attorney General. 

12 SEC. 9. EXCLUSIONARY CONDUCT. 

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

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

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

16 ‘‘SEC. 26A. EXCLUSIONARY CONDUCT. 

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

18 ‘‘(1) EXCLUSIONARY CONDUCT.— 

19 ‘‘(A) IN GENERAL.—The term ‘exclu20 sionary conduct’ means conduct that— 

21 ‘‘(i) materially disadvantages 1 or 

22 more actual or potential competitors; or 

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

24 ability or incentive of 1 or more actual or 

25 potential competitors to compete. 


pamtmann on DSKBC07HB2PROD with BILLS
28 

•S 225 IS

1 ‘‘(B) LIMITATIONS.— 

2 ‘‘(i) Applying for or enforcing a pat3 ent, trademark, or copyright, unless such 

4 applications or enforcement actions are 

5 baseless or made in bad faith or in viola6 tion of a legal obligation, shall not alone 

7 constitute exclusionary conduct, but such 

8 actions may be considered as part of a 

9 course of conduct that constitutes exclu10 sionary conduct. 

11 ‘‘(ii) Conduct that is necessary to 

12 comply with Federal or State law shall not 

13 alone constitute exclusionary conduct, but 

14 such actions may be considered as part of 

15 a course of conduct that constitutes exclu16 sionary conduct. 

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

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

19 persons acting in concert, to profitably impose terms 

20 or conditions on counterparties, including terms re21 garding price, quantity, product or service quality, 

22 or other terms affecting the value of consideration 

23 exchanged in the transaction, that are more favor24 able to the person or group of persons imposing 


pamtmann on DSKBC07HB2PROD with BILLS
29 

•S 225 IS

1 them than what the person or group of persons 

2 could obtain in a competitive market. 

3 ‘‘(b) VIOLATION.— 

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

5 person, acting alone or in concert with other per6 sons, to engage in exclusionary conduct that pre7 sents an appreciable risk of harming competition. 

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

9 violation of paragraph (1) shall also constitute an 

10 unfair method of competition under section 5 of the 

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

12 ‘‘(c) PRESUMPTION.— 

13 ‘‘(1) IN GENERAL.—Except as provided in para14 graph (2), exclusionary conduct shall be presumed to 

15 present an appreciable risk of harming competition 

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

17 exclusionary conduct is undertaken, with respect to 

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

19 more than 1 person acting in concert that— 

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

21 50 percent as a seller or a buyer in the relevant 

22 market; or 

23 ‘‘(B) otherwise has significant market 

24 power in the relevant market. 


pamtmann on DSKBC07HB2PROD with BILLS
30 

•S 225 IS

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

2 apply if the defendant establishes, by a preponder3 ance of the evidence, that— 

4 ‘‘(A) distinct procompetitive benefits of the 

5 exclusionary conduct in the relevant market 

6 eliminate the risk of harming competition pre7 sented by the exclusionary conduct; 

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

9 person participating in or facilitating the exclu10 sionary conduct, have entered or expanded their 

11 presence in the market with the effect of elimi12 nating the risk of harming competition posed by 

13 the exclusionary conduct; or 

14 ‘‘(C) the exclusionary conduct does not 

15 present an appreciable risk of harming competi16 tion. 

17 ‘‘(d) CONSIDERATIONS.—If the presumption in sub18 section (c) does not apply, the determination of whether 

19 exclusionary conduct presents an appreciable risk of harm20 ing competition shall be based on the totality of the cir21 cumstances, which may include consideration of— 

22 ‘‘(1) the extent to which any distinct procom23 petitive benefits of the exclusionary conduct substan24 tially eliminate the risk of harming competition pre25 sented by the exclusionary conduct; and 


pamtmann on DSKBC07HB2PROD with BILLS
31 

•S 225 IS

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

2 any person participating in or facilitating the exclu3 sionary conduct, have entered or expanded their 

4 presence in the market, substantially eliminating the 

5 risk of harming competition presented by the exclu6 sionary conduct. 

7 ‘‘(e) LIMITATIONS.—Although the following cir8 cumstances may constitute evidence of a violation of sub9 section (b)(1), such violation does not require finding— 

10 ‘‘(1) that the unilateral conduct of the defend11 ant altered or terminated a prior course of dealing 

12 between the defendant and a person subject to the 

13 exclusionary conduct; 

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

15 to the exclusionary conduct differently than the de16 fendant treated other persons; 

17 ‘‘(3) that any price of the defendant for a prod18 uct or service was below any measure of the costs 

19 to the defendant of providing the product or service; 

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

21 power in a relevant market has recouped or is likely 

22 to recoup the losses it incurred or incurs from below23 cost pricing for products or services in the relevant 

24 market; 


pamtmann on DSKBC07HB2PROD with BILLS
32 

•S 225 IS

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

2 no economic sense apart from its tendency to harm 

3 competition; 

4 ‘‘(6) that the risk of harming competition pre5 sented by the conduct of the defendant or any re6 sulting actual harm to competition have been quan7 tified or proven with quantitative evidence; or 

8 ‘‘(7) that when a defendant operates a multi9 sided platform business, the conduct of the defend10 ant presents an appreciable risk of harming competi11 tion on more than 1 side of the multi-sided platform. 

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

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

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

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

16 not more than the greater of— 

17 ‘‘(1) 15 percent of the total United States reve18 nues of the person for the previous calendar year; or 

19 ‘‘(2) 30 percent of the United States revenues 

20 of the person in any line of commerce affected or 

21 targeted by the unlawful conduct during the period 

22 of the unlawful conduct.’’. 

23 (b) FEDERAL TRADE COMMISSION ACT.— 


pamtmann on DSKBC07HB2PROD with BILLS
33 

•S 225 IS

1 (1) CIVIL PENALTIES.—Section 5 of the Fed2 eral Trade Commission Act (15 U.S.C. 45) is 

3 amended by adding at the end the following: 

4 ‘‘(p) CIVIL PENALTY FOR VIOLATION OF SECTION

5 26A OF THE CLAYTON ACT.—The Commission may com6 mence a civil action in a district court of the United States 

7 against any person, partnership, or corporation who vio8 lates subsection (a)(1) respecting an unfair method of 

9 competition that constitutes a violation of section 26A of 

10 the Clayton Act to recover a civil penalty, which shall ac11 crue to the United States, in an amount not more than 

12 the greater of— 

13 ‘‘(1) 15 percent of the total United States reve14 nues of the person, partnership, or corporation for 

15 the previous calendar year; or 

16 ‘‘(2) 30 percent of the United States revenues 

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

18 of commerce affected or targeted by the unlawful 

19 conduct during the period of the unlawful conduct.’’. 

20 (2) COMMISSION LITIGATION AUTHORITY.—Sec21 tion 16(a)(2) of the Federal Trade Commission Act 

22 (15 U.S.C. 56(a)(2)) is amended— 

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

24 after the semicolon; 

25 (B) in subparagraph (E)— 


pamtmann on DSKBC07HB2PROD with BILLS
34 

•S 225 IS

1 (i) by moving the margins 2 ems to 

2 the left; and 

3 (ii) by inserting ‘‘or’’ after the semi4 colon; and 

5 (C) by inserting after subparagraph (E) 

6 the following: 

7 ‘‘(F) to recover civil penalties under sec8 tion 5(p) of this Act;’’. 

9 (c) ENFORCEMENT GUIDELINES.— 

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

11 the date of enactment of this Act, the Attorney Gen12 eral and the Federal Trade Commission shall issue 

13 joint guidelines outlining policies, practices, and ana14 lytical techniques relating to agency enforcement 

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

16 section 4 of this Act, with the goal of promoting 

17 transparency and deterring violations of section 26A 

18 of the Clayton Act. 

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

20 Federal Trade Commission shall update the joint 

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

22 reflect current agency policies and practices, but not 

23 less frequently than once every 5 years beginning on 

24 the date of enactment of this Act. 

25 (3) PUBLIC NOTICE AND COMMENT.— 


pamtmann on DSKBC07HB2PROD with BILLS
35 

•S 225 IS

1 (A) GUIDELINES.—Before issuing guide2 lines under subsection (c)(1) or (c)(2), the At3 torney General and the Federal Trade Commis4 sion shall publish proposed guidelines in draft 

5 form and provide public notice and opportunity 

6 for comment for not less than 60 days after the 

7 date on which the guidelines are published. 

8 (B) INAPPLICABILITY OF RULEMAKING

9 PROVISIONS.—The provisions of section 553 of 

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

11 the guidelines issued under this section. 

12 SEC. 10. CIVIL PENALTIES FOR SHERMAN ACT VIOLATIONS. 

13 (a) CIVIL PENALTY AMENDMENTS.— 

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

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

16 amended— 

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

18 Every’’; and 

19 (B) by adding at the end the following 

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

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

22 more than the greater of— 

23 ‘‘(A) 15 percent of the total United States reve24 nues of the person for the previous calendar year; or 


pamtmann on DSKBC07HB2PROD with BILLS
36 

•S 225 IS

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

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

3 related to or targeted by the unlawful conduct under 

4 this section during the period of the unlawful con5 duct. 

6 ‘‘(2) A civil penalty under this section may be recov7 ered in a civil action brought by the United States.’’. 

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

9 2 of the Sherman Antitrust Act (15 U.S.C. 2) is 

10 amended— 

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

12 Every’’; and 

13 (B) by adding at the end the following 

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

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

16 more than the greater of— 

17 ‘‘(A) 15 percent of the total United States reve18 nues of the person for the previous calendar year; or 

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

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

21 related to or targeted by the unlawful conduct under 

22 this section during the period of the unlawful con23 duct. 

24 ‘‘(2) A civil penalty under this section may be recov25 ered in a civil action brought by the United States.’’. 


pamtmann on DSKBC07HB2PROD with BILLS
37 

•S 225 IS

1 (3) FEDERAL TRADE COMMISSION ACT.—Sec2 tion 5 of the Federal Trade Commission Act (15 

3 U.S.C. 45) is amended by adding at the end the fol4 lowing: 

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

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

7 partnership, or corporation for a violation of subsection 

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

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

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

11 such violation. 

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

13 partnership, or corporation found to have violated sub14 section (a)(1) respecting an unfair method of competition 

15 that constitutes a violation of section 1 or 2 of the Sher16 man Act (15 U.S.C. 1, 2) shall be liable for a civil penalty 

17 of not more than the greater of— 

18 ‘‘(A) 15 percent of the total United States reve19 nues of the person, partnership, or corporation for 

20 the previous calendar year; or 

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

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

23 of commerce related to or targeted by the unlawful 

24 conduct described in paragraph (1) during the pe25 riod of the unlawful conduct.’’. 


pamtmann on DSKBC07HB2PROD with BILLS
38 

•S 225 IS

1 (b) RULE OF CONSTRUCTION.— 

2 (1) CIVIL PENALTIES.—The civil penalties pro3 vided in subsection (b) of section 1 of the Sherman 

4 Act (15 U.S.C. 1), subsection (b) of section 2 of the 

5 Sherman Act (15 U.S.C. 2), and subsection (o) of 

6 section 5 of the Federal Trade Commission Act (15 

7 U.S.C. 45), as added by subsection (a) of this sec8 tion, are in addition to, and not in lieu of, any other 

9 remedy provided by Federal law, including under— 

10 (A) section 4 or 16 of the Clayton Act (15 

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

12 (B) section 13(b) of the Federal Trade 

13 Commission Act (15 U.S.C. 53(b)). 

14 (2) AUTHORITIES.—Nothing in this paragraph 

15 may be construed to affect any authority of the At16 torney General or the Federal Trade Commission 

17 under any other provision of law. 

18 SEC. 11. JOINT CIVIL PENALTY GUIDELINES. 

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

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

21 the Federal Trade Commission shall issue joint guidelines 

22 reflecting agency policies for determining the appropriate 

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

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

25 26A(f) of the Clayton Act, and sections 5(o) and 5(p) of 


pamtmann on DSKBC07HB2PROD with BILLS
39 

•S 225 IS

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

2 added by of this Act, with the goal of promoting trans3 parency and crafting remedies for individual violations 

4 that are effective in deterring future unlawful conduct and 

5 proportionate to the gravity of the violation. 

6 (b) CONSIDERATIONS.—In establishing the guidelines 

7 described in subsection (a), the Attorney General and the 

8 Federal Trade Commission shall consider the relevant fac9 tors to be used for calculating an appropriate civil penalty 

10 for a particular violation, including— 

11 (1) the volume of commerce affected; 

12 (2) the duration and severity of the unlawful 

13 conduct; 

14 (3) the intent of the person undertaking the un15 lawful conduct; 

16 (4) the extent to which the unlawful conduct 

17 was egregious or a clear violation of the law; 

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

19 combination with other remedies, including— 

20 (A) structural remedies, behavioral condi21 tions, or equitable disgorgement; or 

22 (B) other remedies available under section 

23 4, 4A, 15, or 16 of the Clayton Act (15 U.S.C. 

24 15, 15a, 25, 26) or section 13(b) of the Federal 

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


pamtmann on DSKBC07HB2PROD with BILLS
40 

•S 225 IS

1 (6) whether the person has previously engaged 

2 in the same or similar anticompetitive conduct; and 

3 (7) whether the person undertook the conduct 

4 in violation of a preexisting consent decree or court 

5 order. 

6 (c) UPDATES.—The Attorney General and the Fed7 eral Trade Commission shall update the joint guidelines 

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

9 agency policies and practices, but not less frequently than 

10 once every 5 years beginning on the date of enactment 

11 of this Act. 

12 (d) PUBLIC NOTICE AND COMMENT.— 

13 (1) GUIDELINES.—Before issuing guidelines 

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

15 General and the Federal Trade Commission shall 

16 publish proposed guidelines in draft form and pro17 vide public notice and opportunity for comment for 

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

19 guidelines are published. 

20 (2) INAPPLICABILITY OF RULEMAKING PROVI21 SIONS.—The provisions of section 553 of title 5, 

22 United States Code, shall not apply to the guidelines 

23 issued under this section. 


pamtmann on DSKBC07HB2PROD with BILLS
41 

•S 225 IS

1 SEC. 12. FEDERAL TRADE COMMISSION LITIGATION AU2 THORITY. 

3 Section 16(a)(2) of the Federal Trade Commission 

4 Act (15 U.S.C. 56(a)(2)) is amended— 

5 (1) in subparagraph (D), by striking ‘‘or’’ at 

6 the end; 

7 (2) in subparagraph (E)— 

8 (A) by moving the margins 2 ems to the 

9 left; and 

10 (B) by striking the semicolon and inserting 

11 ‘‘; or’’; and 

12 (3) by inserting after subparagraph (E) the fol13 lowing: 

14 ‘‘(F) to recover civil penalties under sec15 tion 5(o) of this Act;’’. 

16 SEC. 13. MARKET DEFINITION. 

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

18 antitrust laws does not require the definition of a relevant 

19 market, except when the definition of a relevant market 

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

21 claim, under a statutory provision that explicitly ref22 erences the terms ‘‘relevant market’’, ‘‘market concentra23 tion’’, or ‘‘market share’’. Statutory references to the term 

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

25 the foregoing rule that establishing liability under the 


pamtmann on DSKBC07HB2PROD with BILLS
42 

•S 225 IS

1 antitrust laws does not require the definition of a relevant 

2 market. 

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

4 record is sufficient to prove actual or likely harm to com5 petition, an appreciable risk to competition sufficient to 

6 satisfy the applicable statutory standard, or that the effect 

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

8 (15 U.S.C. 18) may be to create an appreciable risk of 

9 materially lessening competition or to tend to create a mo10 nopoly or a monopsony, neither a court nor the Federal 

11 Trade Commission shall require definition of a relevant 

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

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

14 laws. 

15 (c) RULE OF CONSTRUCTION.—Nothing in this sec16 tion may be construed to prevent a court or the Federal 

17 Trade Commission from considering evidence relating to 

18 the definition of proposed relevant markets to evaluate the 

19 merits of a claim under the antitrust laws. 

20 SEC. 14. LIMITATIONS ON IMPLIED IMMUNITY FROM THE 

21 ANTITRUST LAWS. 

22 (a) IN GENERAL.—In any action or proceeding to en23 force the antitrust laws with respect to conduct that is 

24 regulated under Federal statute, no court or adjudicatory 

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


pamtmann on DSKBC07HB2PROD with BILLS
43 

•S 225 IS

1 regulation promulgated in accordance with the Federal 

2 statute, implicitly precludes application of the antitrust 

3 laws to the conduct unless— 

4 (1) a Federal agency or department actively 

5 regulates the conduct under the Federal statute; 

6 (2) the Federal statute does not include any 

7 provision preserving the rights, claims, or remedies 

8 under the applicable antitrust laws or under any 

9 area of law that includes the antitrust laws; and 

10 (3) Federal agency or department rules or regu11 lations, adopted by rulemaking or adjudication, ex12 plicitly require or authorize the defendant to under13 take the conduct. 

14 (b) EXISTING FEDERAL REGULATION.—In any ac15 tion or proceeding described in subsection (a), the anti16 trust laws shall be applied fully and without qualification 

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

18 be defined more narrowly on account of the existence of 

19 Federal rules, regulations, or regulatory agencies or de20 partments, unless application of the antitrust laws is pre21 cluded or limited by— 

22 (1) an explicit exemption from the antitrust 

23 laws under a Federal statute; or 

24 (2) an implied immunity that satisfies the re25 quirements under subsection (a). 


pamtmann on DSKBC07HB2PROD with BILLS
44 

•S 225 IS

1 SEC. 15. AUTHORIZATION OF APPROPRIATIONS. 

2 There is authorized to be appropriated for fiscal year 

3 2022— 

4 (1) $484,500,000 for the Antitrust Division of 

5 the Department of Justice; and 

6 (2) $651,000,000 for the Federal Trade Com7 mission. 

8 SEC. 16. WHISTLEBLOWER PROTECTIONS. 

9 (a) PROTECTIONS FOR CIVIL WHISTLEBLOWERS.— 

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

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

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

13 WHISTLEBLOWERS. 

14 ‘‘(a) WHISTLEBLOWER PROTECTIONS FOR EMPLOY15 EES, CONTRACTORS, SUBCONTRACTORS, AND AGENTS.— 

16 ‘‘(1) IN GENERAL.—No employer may dis17 charge, demote, suspend, threaten, harass, or in any 

18 other manner discriminate against a covered indi19 vidual in the terms and conditions of employment of 

20 the covered individual because of any lawful act done 

21 by the covered individual— 

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

23 the Federal Government or a person with su24 pervisory authority over the covered individual 

25 (or such other person working for the employer 

26 who has the authority to investigate, discover, 


pamtmann on DSKBC07HB2PROD with BILLS
45 

•S 225 IS

1 or terminate misconduct) information relating 

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

3 covered individual reasonably believes to be a 

4 violation of, the applicable antitrust laws; or 

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

8 proceeding filed or about to be filed (with any 

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

12 the applicable antitrust laws. 

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

15 if— 

16 ‘‘(A) the covered individual planned and 

17 initiated a violation or attempted violation of 

18 the applicable antitrust laws; 

19 ‘‘(B) the covered individual planned and 

20 initiated a violation or attempted violation of a 

21 criminal law in conjunction with a violation or 

22 attempted violation of the applicable antitrust 

23 laws; or 

24 ‘‘(C) the covered individual planned and 

25 initiated an obstruction or attempted obstrucVerDate Sep 11 2014 19:24 Feb 25, 2021 Jkt 019200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\S225.IS S225

pamtmann on DSKBC07HB2PROD with BILLS
46 

•S 225 IS

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

3 laws. 

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

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

6 term ‘applicable antitrust laws’ means section 

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

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

10 such section applies to unfair methods of com11 petition. 

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

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

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

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

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

19 ‘Federal Government’ means— 

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

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


pamtmann on DSKBC07HB2PROD with BILLS
47 

•S 225 IS

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

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

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

4 ‘‘(b) ENFORCEMENT ACTION.— 

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

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

8 under subsection (c) by— 

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

10 of Labor; or 

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

12 issued a final decision within 180 days of the 

13 filing of the complaint and there is no showing 

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

15 claimant, bringing an action at law or equity 

16 for de novo review in the appropriate district 

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

19 the amount in controversy. 

20 ‘‘(2) PROCEDURE.— 

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

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

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

25 United States Code. 


pamtmann on DSKBC07HB2PROD with BILLS
48 

•S 225 IS

1 ‘‘(B) EXCEPTION.—Notification made 

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

3 States Code, shall be made to any individual 

4 named in the complaint and to the employer. 

5 ‘‘(C) BURDENS OF PROOF.—An action 

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

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

9 Code. 

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

12 with the Secretary of Labor not later than 180 

13 days after the date on which the violation of 

14 this section occurs. 

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

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

18 pursuant to the procedures set forth in section 

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

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

23 the United States for the judicial district in 

24 which the violation occurred. 

25 ‘‘(c) REMEDIES.— 


pamtmann on DSKBC07HB2PROD with BILLS
49 

•S 225 IS

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

3 entitled to all relief necessary to make the covered 

4 individual whole. 

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

6 action under paragraph (1) shall include— 

7 ‘‘(A) reinstatement with the same seniority 

8 status that the covered individual would have 

9 had, but for the discrimination; 

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

12 ‘‘(C) compensation for any special damages 

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

15 reasonable attorney’s fees. 

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

17 Nothing in this section shall be deemed to diminish the 

18 rights, privileges, or remedies of any covered individual 

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

20 bargaining agreement.’’. 

21 (b) WHISTLEBLOWER REWARD.—The Antitrust 

22 Criminal Penalty Enhancement and Reform Act of 2004 

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

24 216 the following: 


pamtmann on DSKBC07HB2PROD with BILLS
50 

•S 225 IS

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

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

4 definitions shall apply: 

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

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

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

8 ‘‘(2) COVERED ENFORCEMENT ACTION.—The 

9 term ‘covered enforcement action’ means any crimi10 nal action brought by the Attorney General under 

11 the antitrust laws that results in criminal fines ex12 ceeding $1,000,000. 

13 ‘‘(3) ORIGINAL INFORMATION.—The term 

14 ‘original information’ means information that— 

15 ‘‘(A) is derived from the independent 

16 knowledge or analysis of a whistleblower; 

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

18 or the Department of Justice from any other 

19 source, unless the whistleblower is the original 

20 source of the information; and 

21 ‘‘(C) is not exclusively derived from an al22 legation made in a judicial or administrative 

23 hearing, in a governmental report, hearing, 

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

25 unless the whistleblower is a source of the infor26 mation. 


pamtmann on DSKBC07HB2PROD with BILLS
51 

•S 225 IS

1 ‘‘(4) WHISTLEBLOWER.—The term ‘whistle2 blower’ means any individual who provides, or 2 or 

3 more individuals acting jointly who provide, informa4 tion relating to a violation of the antitrust laws to 

5 the Department of Justice, in a manner established 

6 by the Department of Justice. 

7 ‘‘(b) AWARDS.— 

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

9 action, the Attorney General, subject to subsection 

10 (c), may pay an award or awards to 1 or more whis11 tleblowers who voluntarily provided original informa12 tion to the Department of Justice that led to the 

13 successful enforcement of the covered enforcement 

14 action, in an amount equal to not more than 30 per15 cent, in total, of what has been collected of the 

16 criminal fine imposed in the covered enforcement ac17 tion under the antitrust laws. 

18 ‘‘(2) PAYMENT.—Any amount paid under para19 graph (1) shall be paid from the criminal fine col20 lected in the covered enforcement action. 

21 ‘‘(c) DETERMINATION OF AMOUNT OF AWARD; DE22 NIAL OF AWARD.— 

23 ‘‘(1) DETERMINATION OF AMOUNT OF

24 AWARD.— 


pamtmann on DSKBC07HB2PROD with BILLS
52 

•S 225 IS

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

2 the amount of an award made under subsection 

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

4 General. 

5 ‘‘(B) CRITERIA.—In determining the 

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

7 the Attorney General shall take into consider8 ation— 

9 ‘‘(i) the significance of the informa10 tion provided by the whistleblower to the 

11 success of the covered enforcement action; 

12 ‘‘(ii) the degree of assistance and co13 operation provided by the whistleblower in 

14 a covered enforcement action; 

15 ‘‘(iii) the interest of the Department 

16 of Justice in deterring criminal violations 

17 of the antitrust laws by making awards to 

18 whistleblowers who provide information 

19 that lead to the successful covered enforce20 ment actions; and 

21 ‘‘(iv) such additional relevant factors 

22 as the Attorney General may establish. 

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

24 subsection (b) shall be made— 


pamtmann on DSKBC07HB2PROD with BILLS
53 

•S 225 IS

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

2 the time the whistleblower acquired the original 

3 information submitted to the Commission, a 

4 member, officer, or employee of— 

5 ‘‘(i) any branch, agency, or instru6 mentality of the Federal Government; or 

7 ‘‘(ii) any law enforcement organiza8 tion; 

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

10 of a criminal violation related to the covered en11 forcement action for which the whistleblower 

12 otherwise could receive an award under this sec13 tion; 

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

15 originator or leader of or who coerced any other 

16 party to participate in the activity giving rise to 

17 liability under the antitrust laws in the covered 

18 enforcement action for which the whistleblower 

19 otherwise could receive an award under this sec20 tion; 

21 ‘‘(D) to any whistleblower who fails to re22 spond fully and truthfully to all inquiries of the 

23 Department of Justice relating to the original 

24 information or intentionally withholds informa25 tion relating to the original information; 


pamtmann on DSKBC07HB2PROD with BILLS
54 

•S 225 IS

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

2 participates in, or attempts to commit or par3 ticipate in any crimes after disclosing the origi4 nal information to the Department of Justice; 

5 or 

6 ‘‘(F) to any whistleblower who fails to sub7 mit information to the Department of Justice in 

8 such form as the Department may require. 

9 ‘‘(d) REPRESENTATION.— 

10 ‘‘(1) PERMITTED REPRESENTATION.—Any 

11 whistleblower who makes a claim for an award under 

12 subsection (b) may be represented by counsel. 

13 ‘‘(2) REQUIRED REPRESENTATION.—Any whis14 tleblower who makes a claim for an award under 

15 subsection (b) may be represented by counsel. 

16 ‘‘(A) IN GENERAL.—Any whistleblower 

17 who anonymously makes a claim for an award 

18 under subsection (b) shall be represented by 

19 counsel if the whistleblower anonymously sub20 mits the information upon which the claim is 

21 based. 

22 ‘‘(B) DISCLOSURE OF IDENTITY.—Prior to 

23 the payment of an award, a whistleblower shall 

24 disclose the identity of the whistleblower and 

25 provide such other information as the Attorney 


pamtmann on DSKBC07HB2PROD with BILLS
55 

•S 225 IS

1 General or the Department of Justice may re2 quire, directly or through counsel for the whis3 tleblower. 

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

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

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

7 General. Any such determination, except the determina8 tion of the amount of an award if the award was made 

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

10 appropriate court of appeals of the United States not more 

11 than 30 days after the determination is issued by the At12 torney General. The court shall review the determination 

13 made by the Attorney General in accordance with section 

14 706 of title 5.’’. 

15 SEC. 17. PREJUDGMENT INTEREST. 

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

17 amended by striking subsection (a) and inserting the fol18 lowing: 

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

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

21 of anything forbidden in the antitrust laws may sue there22 for in any district court of the United States in the district 

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

24 without respect to the amount in controversy, and shall 

25 recover threefold the damages by him sustained, the cost 


pamtmann on DSKBC07HB2PROD with BILLS
56 

•S 225 IS

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

2 interest on threefold the damages by him sustained for 

3 the period beginning on the date of service of such per4 son’s pleading setting forth a claim under the antitrust 

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

6 SEC. 18. ADDITIONAL REMEDIES; RULES OF CONSTRUC7 TION. 

8 (a) ADDITIONAL REMEDIES.—The rights and rem9 edies provided under this Act are in addition to, not in 

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

11 law, including under section 4, 4A, 15, or 16 of the Clay12 ton Act (15 U.S.C. 15, 15a, 25, 26) or section 13(b) of 

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

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

15 may be construed to— 

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

17 the antitrust laws; and 

18 (2) prohibit any other remedy provided by Fed19 eral law. 

Æ 


pamtmann on DSKBC07HB2PROD with BILLS