Trust-Busting for the Twenty-First Century Act

To amend the Sherman Act, the Clayton Act, and the Federal Trade Commission Act to promote competition in the United States, and for other purposes. 1. Short title This Act may be cited as the Trust-Busting for the Twenty-First Century Act 2. Sherman Act amendments The Sherman Act ( 15 U.S.C. 1 (1) in section 2 ( 15 U.S.C. 2 (A) by striking Every (a) Every (B) by adding at the end the following: (b) (1) In any case alleging a violation of this section or section 1 in which a plaintiff establishes by a preponderance of the evidence (including direct evidence) the existence of substantial market power or the anticompetitive or otherwise detrimental effects of particular practices, a plaintiff need neither define the scope of a relevant market nor establish the share of such a market controlled by the defendant. (2) In any case alleging a violation of this section or section 1 in which the defendant relies on alleged procompetitive effects to justify the conduct of the defendant, the defendant shall establish by clear and convincing evidence that— (A) the procompetitive effects of the conduct clearly outweigh the anticompetitive effects of the conduct; and (B) the defendant could not obtain substantially similar procompetitive effects through commercially reasonable alternatives that would involve materially lower competitive risks. ; and (2) in section 4 ( 15 U.S.C. 4 (A) by striking The several (a) The several (B) by adding at the end the following: (b) In any action brought by the United States or the Federal Trade Commission alleging a violation of this Act, if the United States or the Federal Trade Commission establishes such a violation, the court shall order disgorgement of all profits earned by the defendant as a result of the conduct constituting that violation, except upon a showing of extraordinary good cause. (c) It is the policy of the United States that the principal standard for evaluating the permissibility of practices under this Act is the protection of economic competition within the United States. . 3. Clayton Act amendments The Clayton Act ( 15 U.S.C. 12 (1) in the first section ( 15 U.S.C. 12 (c) It is the policy of the United States that the principal standard for evaluating the permissibility of practices under this Act is the protection of economic competition within the United States. ; (2) in section 7 ( 15 U.S.C. 18 No person with a market capitalization exceeding $100,000,000,000 (as adjusted and published for each fiscal year beginning after September 30, 2022, in the same manner as provided in section 8(a)(5) to reflect the percentage change in the gross national product for such fiscal year compared to the gross national product for the year ending September 30, 2021) shall acquire, directly or indirectly, the whole or any part of the stock or other share capital or the whole or any part of the assets of 1 or more persons engaged in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition, of such stocks or assets, or of the use of such stock by the voting or granting of proxies or otherwise, may be to lessen competition in any way. Where a preponderance of the evidence (including direct evidence) is adduced to demonstrate that the effect of an acquisition may be substantially to lessen competition or to tend to create a monopoly, a plaintiff need neither establish market shares nor the concentration of any particular market. No acquisition shall be presumed not to substantially lessen competition or tend to create a monopoly only because the parties to the acquisition do not compete directly against one another at the time of the acquisition. ; and (3) in section 7a(a) ( 15 U.S.C. 18a(a) In the case of any transaction involving a person, partnership, or corporation designated as a dominant digital firm under section 10A of the Federal Trade Commission Act, the person, partnership, or corporation shall file notification as required by this section. 4. Restrictions on dominant digital firms The Federal Trade Commission Act ( 15 U.S.C. 41 10A. Restrictions on dominant digital firms (a) Definitions In this section: (1) Dominant digital firm The term dominant digital firm (A) provides a website or service accessible through the internet; and (B) possesses dominant market power in any market related to that website or service. (2) Search functionality The term search functionality (b) Designation as a dominant digital firm (1) In general The Commission shall have power to designate a person, partnership, or corporation as a dominant digital firm. (2) Factors to be considered In determining whether a person, partnership, or corporation possesses dominant market power under paragraph (1), the Commission shall consider factors including— (A) dominance of the firm in other markets and durability of the dominance; (B) the extent to which the firm benefits from government contracts or other privileges; (C) exclusivity agreements entered into by the firm; (D) network effects; and (E) any ownership stake of the firm in other entities within the supply chain of the firm. (3) Investigative authority In determining whether to designate a person, partnership, or corporation as a dominant digital firm under paragraph (1), the Commission shall have power to issue investigative demands. (c) Requirements (1) In general Any designation made by the Commission under subsection (b) shall be preceded by a notice and comment period in accordance with section 553 of title 5, United States Code, except that the required publication and service of any designation by the Commission may be made not less than 15 days before the effective date of the designation. (2) Judicial review Any designation made by the Commission under subsection (b) shall be subject to judicial review pursuant to section 706 of title 5, United States Code. (d) Presumption as unfair or deceptive act or practice Any acquisition by a person, partnership, or corporation designated as a dominant digital firm under this section, direct or indirect, of the whole or any part of the stock or other share capital or the whole or any part of the assets of 1 or more persons engaged in commerce or in any activity affecting commerce, where such acquisition exceeds $1,000,000 (as adjusted and published for each fiscal year beginning after September 30, 2022, in the same manner as provided in section 8(a)(5) of the Clayton Act to reflect the percentage change in the gross national product for such fiscal year compared to the gross national product for the year ending September 30, 2021) shall be presumed to be a unfair or deceptive act or practice. (e) Unfair or deceptive act or practice It shall be an unfair or deceptive act or practice if a person, partnership, or corporation designated as a dominant digital firm under this section— (1) provides search functionality; (2) promotes or demotes particular search results, on the basis of whether those results are affiliated or not affiliated with the dominant digital firm; and (3) does not disclose such affiliation to users of the search functionality. .

Summary: Trust-Busting for the Twenty-First Century Act This bill makes various changes to the federal antitrust statutes and places restrictions on acquisitions involving certain dominant digital firms. First, the bill revises the evidentiary standards for establishing an illegal monopoly. Under the bill, if a plaintiff establishes the existence of substantial market power or the detrimental effects of particular practices, then the plaintiff need not further establish the scope of the relevant market or the share of the market controlled by the defendant. Further, to prove that the procompetitive effects justify a defendant's conduct the defendant must show by clear and convincing evidence that (1) the procompetitive effects of the conduct outweigh the anticompetitive effects, and (2) the defendant could not obtain substantially similar procompetitive effects through commercially reasonable alternatives. In the case of a violation, courts must order the disgorgement of all profits earned as a result of the conduct. Next, the bill generally prohibits acquisitions by companies with a market capitalization exceeding $100 billion where the effect of the acquisition may be to lessen competition. Finally, the Federal Trade Commission may designate as a dominant digital firm a website or online service that the commission determines possesses dominant market power based on specified factors. Acquisitions by such firms in excess of $1 million are presumed unfair trade practices under the bill. Further, a dominant digital firm that provides search functionality must disclose to users any search results are that are promoted or demoted based on whether the search result is affiliated or not affiliated with the firm.