II 

108TH CONGRESS 

1ST SESSION S. 1797

To implement antitrust enforcement enhancements and cooperation incentives. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 29, 2003

Mr. DEWINE (for himself and Mr. KOHL) introduced the following bill; which 

was read twice and referred to the Committee on the Judiciary 

A BILL

To implement antitrust enforcement enhancements and 

cooperation incentives.

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 ‘‘Antitrust Criminal 

5 Penalty Enhancement and Reform Act of 2003’’. 

6 TITLE I—ANTITRUST ENFORCE7 MENT ENHANCEMENTS AND 

8 COOPERATION INCENTIVES 

9 SEC. 101. SUNSET. 

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

11 (b), the provisions of sections 101 through 104 shall cease 
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1 to have effect 5 years after the date of enactment of this 

2 Act. 

3 (b) EXCEPTION.—With respect to an applicant who 

4 has entered into an antitrust leniency agreement on or be5 fore the date on which the provisions of sections 101 

6 through 104 of this title shall cease to have effect, the 

7 provisions of sections 101 through 104 of this title shall 

8 continue in effect. 

9 SEC. 102. DEFINITIONS. 

10 In this title: 

11 (1) ANTITRUST DIVISION.—The term ‘‘Anti12 trust Division’’ means the United States Depart13 ment of Justice Antitrust Division. 

14 (2) ANTITRUST LENIENCY AGREEMENT.—The 

15 term ‘‘antitrust leniency agreement,’’ or ‘‘agree16 ment,’’ means a leniency letter agreement, whether 

17 conditional or final, between a person and the Anti18 trust Division pursuant to the Corporate Leniency 

19 Policy of the Antitrust Division in effect on the date 

20 of execution of the agreement. 

21 (3) ANTITRUST LENIENCY APPLICANT.—The 

22 term ‘‘antitrust leniency applicant,’’ or ‘‘applicant,’’ 

23 means, with respect to an antitrust leniency agree24 ment, the person that has entered into the agree25 ment. 
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1 (4) CLAIMANT.—The term ‘‘claimant’’ means a 

2 person or class, that has brought, or on whose behalf 

3 has been brought, a civil action described in section 

4 104(1), except that the term does not include a 

5 State or a subdivision of a State with respect to a 

6 civil action brought to recover damages sustained by 

7 the State or subdivision. 

8 (5) COOPERATING INDIVIDUAL.—The term ‘‘co9 operating individual’’ means, with respect to an anti10 trust leniency agreement, a current or former direc11 tor, officer, or employee of the antitrust leniency ap12 plicant who is covered by the agreement. 

13 (6) PERSON.—The term ‘‘person’’ has the 

14 meaning given it in subsection (a) of the first section 

15 of the Clayton Act. 

16 SEC. 103. LIMITATION ON RECOVERY. 

17 (a) IN GENERAL.—Subject to subsection (d), in any 

18 civil action alleging a violation of section 1 or 3 of the 

19 Sherman Act, or alleging a violation of any similar State 

20 law, based on conduct covered by a currently effective 

21 antitrust leniency agreement, the amount of damages re22 covered by or on behalf of a claimant from an antitrust 

23 leniency applicant who satisfies the requirements of sub24 section (b), together with the amounts so recovered from 

25 cooperating individuals who satisfy such requirements, 
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1 shall not exceed that portion of the actual damages sus2 tained by such claimant which is attributable to the com3 merce done by the applicant in the goods or services af4 fected by the violation. 

5 (b) REQUIREMENTS.—Subject to subsection (c), an 

6 antitrust leniency applicant or cooperating individual sat7 isfies the requirements of this subsection with respect to 

8 a civil action described in subsection (a) if the court in 

9 which the civil action is brought determines that the appli10 cant or cooperating individual, as the case may be, has 

11 provided satisfactory cooperation to the claimant with re12 spect to the civil action, which cooperation shall include—

13 (1) providing a full account to the claimant of 

14 all facts known to the applicant or cooperating indi15 vidual, as the case may be, that are potentially rel16 evant to the civil action; 

17 (2) furnishing all documents or other items po18 tentially relevant to the civil action that are in the 

19 possession, custody, or control of the applicant or co20 operating individual, as the case may be, wherever 

21 they are located; and 

22 (3)(A) in the case of a cooperating individual—

23 (i) making himself or herself available for 

24 such interviews, depositions, or testimony in 
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1 connection with the civil action as the claimant 

2 may reasonably require; and 

3 (ii) responding completely and truthfully, 

4 without making any attempt either falsely to 

5 protect or falsely to implicate any person or en6 tity, and without intentionally withholding any 

7 potentially relevant information, to all questions 

8 asked by the claimant in interviews, depositions, 

9 trials, or any other court proceedings in connec10 tion with the civil action; or 

11 (B) in the case of an antitrust leniency appli12 cant, using its best efforts to secure and facilitate 

13 from cooperating individuals covered by the agree14 ment the cooperation described in paragraphs (1) 

15 and (2) and subparagraph (A). 

16 (c) TIMELINES.—If the initial contact by the anti17 trust leniency applicant with the Antitrust Division re18 garding conduct covered by the antitrust leniency agree19 ment occurs after a civil action described in subsection (a) 

20 has been filed, then the court shall consider, in making 

21 the determination concerning satisfactory cooperation de22 scribed in subsection (b), the timeliness of the applicant’s 

23 initial cooperation with the claimant. 

24 (d) CONTINUATION.—Nothing in this section shall be 

25 construed to modify, impair, or supersede the provisions
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1 of sections 4, 4A, and 4C of the Clayton Act relating to 

2 the recovery of costs of suit, including a reasonable attor3 ney’s fee, and interest on damages, to the extent that such 

4 recovery is authorized by such sections. 

5 SEC. 104. RIGHTS AND AUTHORITY OF ANTITRUST DIVI6 SION NOT AFFECTED. 

7 Nothing in this title shall be construed to—

8 (1) affect the rights of the Antitrust Division to 

9 seek a stay or protective order in a civil action based 

10 on conduct covered by an antitrust leniency agree11 ment to prevent the cooperation described in section 

12 103(b) from impairing or impeding the investigation 

13 or prosecution by the Antitrust Division of conduct 

14 covered by the agreement; or 

15 (2) create any right to challenge any decision 

16 by the Antitrust Division with respect to an anti17 trust leniency agreement. 

18 SEC. 105. INCREASED PENALTIES FOR ANTITRUST VIOLA19 TIONS. 

20 (a) RESTRAINT OF TRADE AMONG THE STATES.—

21 Section 1 of the Sherman Act (15 U.S.C. 1) is amended 

22 by—

23 (1) striking ‘‘$10,000,000’’ and inserting 

24 ‘‘$100,000,000’’; 
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1 (2) striking ‘‘$350,000’’ and inserting 

2 ‘‘$1,000,000’’; and 

3 (3) striking ‘‘three’’ and inserting ‘‘10’’. 

4 (b) MONOPOLIZING TRADE.—Section 2 of the Sher5 man Act (15 U.S.C. 2) is amended by—

6 (1) striking ‘‘$10,000,000’’ and inserting 

7 ‘‘$100,000,000’’; 

8 (2) striking ‘‘$350,000’’ and inserting 

9 ‘‘$1,000,000’’; and 

10 (3) striking ‘‘three’’ and inserting ‘‘10’’. 

11 (c) OTHER RESTRAINTS OF TRADE.—Section 3 of 

12 the Sherman Act (15 U.S.C. 3) is amended by—

13 (1) striking ‘‘$10,000,000’’ and inserting 

14 ‘‘$100,000,000’’; 

15 (2) striking ‘‘$350,000’’ and inserting 

16 ‘‘$1,000,000’’; and 

17 (3) striking ‘‘three’’ and inserting ‘‘10’’. 

18 (d) SENTENCING GUIDELINE FOR ANTITRUST OF19 FENSES.—The Guidelines Manual promulgated by the 

20 Sentencing Commission pursuant to section 994(a) of title 

21 28, United States Code, is amended as follows: 

22 (1) Section 2R1.1(a) is amended by striking 

23 ‘‘10’’ and inserting ‘‘14’’. 

24 (2) The volume of commerce table in section 

25 2R1.1(b)(2) is amended to read as follows: 
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1 ‘‘(2) If the volume of commerce attributable to 

2 the defendant was more than $5,000,000, adjust the 

3 offense level as follows:

‘‘Volume of Adjustment to 

Commerce (Apply the Greatest): Offense Level: 

More than $5,000,000 ............................................................. add 1

More than $10,000,000 ........................................................... add 2

More than $20,000,000 ........................................................... add 4

More than $40,000,000 ........................................................... add 6

More than $80,000,000 ........................................................... add 8

More than $160,000,000 ......................................................... add 10

More than $320,000,000 ......................................................... add 12

More than $640,000,000 ......................................................... add 14

More than $1,000,000,000 ...................................................... add 16.’’.

4 (3) Section 2R1.1(c)(1) is amended by striking 

5 ‘‘$20,000’’ and inserting ‘‘$50,000’’. 

6 TITLE II—TUNNEY ACT REFORM 

7 SEC. 201. PUBLIC INTEREST DETERMINATION. 

8 Section 5 of the Clayton Act (15 U.S.C. 16) is 

9 amended—

10 (1) in subsection (d), by inserting at the end 

11 the following: ‘‘Upon application by the United 

12 States, the district court may, for good cause (based 

13 on a finding that the expense of publication in the 

14 Federal Register exceeds the public interest benefits 

15 to be gained from such publication), authorize an al16 ternative method of public dissemination of the pub17 lic comments received and the response to those 

18 comments.’’; and 

19 (2) in subsection (e)—
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1 (A) in the matter before paragraph (1), 

2 by—

3 (i) inserting ‘‘independently’’ after 

4 ‘‘shall’’; 

5 (ii) striking ‘‘court may’’ and insert6 ing ‘‘court shall’’; and 

7 (iii) inserting ‘‘(1)’’ before ‘‘Before’’; 

8 and 

9 (B) striking paragraphs (1) and (2) and 

10 inserting the following: 

11 ‘‘(A) the competitive impact of such judgment, 

12 including termination of alleged violations, provisions 

13 for enforcement and modification, duration of relief 

14 sought, anticipated effects of alternative remedies 

15 actually considered, whether its terms are ambiguous 

16 and any other competitive considerations bearing 

17 upon the adequacy of such judgment necessary to a 

18 determination of whether the consent judgment is in 

19 the public interest; and 

20 ‘‘(B) the impact of entry of such judgment 

21 upon competition in the relevant market or markets, 

22 upon the public generally and individuals alleging 

23 specific injury from the violations set forth in the 

24 complaint including consideration of the public ben-
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1 efit, if any, to be derived from a determination of 

2 the issues at trial. 

3 ‘‘(2) The Court shall not enter any consent judgment 

4 proposed by the United States under this section unless 

5 it finds that there is reasonable belief, based on substan6 tial evidence and reasoned analysis, to support the United 

7 States’ conclusion that the consent judgment is in the pub8 lic interest. In making its determination as to whether 

9 entry of the consent judgment is in the public interest, 

10 the Court shall not be limited to examining only the fac11 tors set forth in this subsection, but may consider any 

12 other factor relevant to the competitive impact of the judg13 ment.’’.

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