II 

116TH CONGRESS 

1ST SESSION S. 2237 

To authorize the Department of Justice and the Federal Trade Commission 

to seek civil monetary penalties to deter violations of section 2 of the 

Sherman Act, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 23, 2019 

Ms. KLOBUCHAR (for herself and Mr. BLUMENTHAL) introduced the following 

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

A BILL 

To authorize the Department of Justice and the Federal 

Trade Commission to seek civil monetary penalties to 

deter violations of section 2 of the Sherman Act, 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 ‘‘Monopolization Deter5 rence Act of 2019’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 


kjohnson on DSK79L0C42 with BILLS
2 

•S 2237 IS

1 (1) competitive markets are critical to ensuring 

2 opportunity for all people in the United States; 

3 (2) when companies compete, businesses offer 

4 the highest quality and choice of goods and services 

5 for the lowest possible prices to consumers and other 

6 businesses; 

7 (3) competition fosters small business growth, 

8 reduces economic inequality, and spurs innovation; 

9 (4) in the United States economy today, the ex10 ercise of market power is substantial and growing; 

11 (5) anticompetitive exclusionary conduct is an 

12 important source of market power and a substantial 

13 threat to the United States economy; 

14 (6) the exercise of market power tends to lessen 

15 the rate of innovation, slow the growth of produc16 tivity, and increase economic inequality in the di17 rectly affected markets and economy-wide; 

18 (7) the civil remedies currently available to cure 

19 violations of section 2 of the Sherman Act (15 

20 U.S.C. 2), including injunctions, equitable monetary 

21 relief, and private damages, have not proven suffi22 cient, on their own, to deter anticompetitive exclu23 sionary conduct; and 

24 (8) in some cases, effective deterrence requires 

25 the imposition of civil penalties, alone or in combinaVerDate Sep 11 2014 03:55 Jul 27, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2237.IS S2237

kjohnson on DSK79L0C42 with BILLS
3 

•S 2237 IS

1 tion with existing remedies, including structural re2 lief, behavioral relief, private damages, and equitable 

3 monetary relief, including disgorgement and restitu4 tion. 

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

6 (1) to enable the Department of Justice and the 

7 Federal Trade Commission to seek civil monetary 

8 penalties, in addition to existing remedies, for mo9 nopolization offenses and anticompetitive exclu10 sionary conduct; and 

11 (2) to give the Department of Justice and the 

12 Federal Trade Commission an additional enforce13 ment tool to craft remedies for individual violations 

14 that are effective to deter future unlawful conduct 

15 and proportionate to the gravity of the violation. 

16 SEC. 3. CIVIL PENALTIES. 

17 (a) CIVIL PENALTY AMENDMENTS.— 

18 (1) SHERMAN ACT.—Section 2 of the Sherman 

19 Act (15 U.S.C. 2) is amended— 

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

21 Every’’; and 

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

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

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

25 more than the greater of— 


kjohnson on DSK79L0C42 with BILLS
4 

•S 2237 IS

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

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

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

5 related to or targeted by the unlawful conduct under 

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

8 ‘‘(2) A civil penalty under this section may be recov9 ered in a civil action brought by the United States.’’. 

10 (2) FEDERAL TRADE COMMISSION ACT.—Sec11 tion 5 of the Federal Trade Commission Act (15 

12 U.S.C. 45) is amended by adding at the end the fol13 lowing: 

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

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

16 partnership, or corporation for a violation of subsection 

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

18 constitutes a violation of section 2 of the Sherman Act 

19 (15 U.S.C. 2) and to recover a civil penalty for such viola20 tion. 

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

22 partnership, or corporation found to have violated sub23 section (a)(1) respecting an unfair method of competition 

24 that constitutes a violation of section 2 of the Sherman 


kjohnson on DSK79L0C42 with BILLS
5 

•S 2237 IS

1 Act (15 U.S.C. 2) shall be liable for a civil penalty of not 

2 more than the greater of— 

3 ‘‘(A) 15 percent of the total United States reve4 nues of the person, partnership, or corporation for 

5 the previous calendar year; or 

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

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

8 of commerce related to or targeted by the unlawful 

9 conduct described in paragraph (1) during the pe10 riod of the unlawful conduct.’’. 

11 (b) RULE OF CONSTRUCTION.— 

12 (1) CIVIL PENALTIES.—The civil penalties pro13 vided in subsection (b) of section 2 of the Sherman 

14 Act (15 U.S.C. 2) and subsection (o) of section 5 of 

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

16 as added by subsection (a) of this section, are in ad17 dition to, and not in lieu of, any other remedy pro18 vided by Federal law, including under— 

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

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

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

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

23 (2) AUTHORITIES.—Nothing in this paragraph 

24 may be construed to affect any authority of the AtVerDate Sep 11 2014 03:55 Jul 27, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2237.IS S2237

kjohnson on DSK79L0C42 with BILLS
6 

•S 2237 IS

1 torney General or the Federal Trade Commission 

2 under any other provision of law. 

3 SEC. 4. JOINT CIVIL PENALTY GUIDELINES. 

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

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

6 the Federal Trade Commission shall issue joint guidelines 

7 reflecting agency policies for determining the appropriate 

8 amount of a civil penalty to be sought under subsection 

9 (b) of section 2 of the Sherman Act (15 U.S.C. 2) and 

10 subsection (o) of section 5 of the Federal Trade Commis11 sion Act (15 U.S.C. 45), as added by section 3(a) of this 

12 Act, with the goal of promoting transparency and crafting 

13 remedies for individual violations that are effective in de14 terring future unlawful conduct and proportionate to the 

15 gravity of the violation. 

16 (b) CONSIDERATIONS.—In establishing the guidelines 

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

18 Federal Trade Commission shall consider the relevant fac19 tors to be used for calculating an appropriate civil penalty 

20 for a particular violation, including— 

21 (1) the volume of commerce affected; 

22 (2) the duration and severity of the unlawful 

23 conduct; 

24 (3) any action taken or attempted by the person 

25 to conceal the unlawful conduct; 


kjohnson on DSK79L0C42 with BILLS
7 

•S 2237 IS

1 (4) the extent to which the unlawful conduct 

2 was egregious or a clear violation of the law; 

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

4 combination with other remedies for the unlawful 

5 conduct, including structural remedies, behavioral 

6 conditions, or equitable monetary relief, including 

7 disgorgement and restitution; 

8 (6) whether the person has previously engaged 

9 in the same or similar anticompetitive conduct; and 

10 (7) whether the person undertook the conduct 

11 in violation of a preexisting consent decree or court 

12 order. 

13 SEC. 5. FEDERAL TRADE COMMISSION LITIGATION AU14 THORITY. 

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

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

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

18 the end; 

19 (2) in subparagraph (E)— 

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

21 left; and 

22 (B) by striking the semicolon and inserting 

23 ‘‘; or’’; and 

24 (3) by inserting after subparagraph (E) the fol25 lowing: 


kjohnson on DSK79L0C42 with BILLS
8 

•S 2237 IS

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

2 5(o) of this Act;’’. 

Æ 


kjohnson on DSK79L0C42 with BILLS