I
106TH CONGRESS
2D SESSION
H. R. 4321
To amend the Sherman Act, the Clayton Act, and the Packers and Stockyards
Act, 1921 with respect of competition among wholesale purchasers; to
establish a commission to review large agriculture mergers, concentration,
and market power, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL 13, 2000
Mr. MINGE (for himself, Mr. DEFAZIO, and Mr. HINCHEY) introduced the fol-
lowing bill; which was referred to the Committee on the Judiciary, and
in addition to the Committee on Agriculture, for a period to be subse-
quently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend the Sherman Act, the Clayton Act, and the Pack-
ers and Stockyards Act, 1921 with respect of competition
among wholesale purchasers; to establish a commission
to review large agriculture mergers, concentration, and
market power, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Antitrust Enforcement
Improvement Act of 2000’’.
SEC. 2. AMENDMENTS TO THE SHERMAN ACT.
(a) TRADE OR COMMERCE.—Sections 1 and 3 of the
Sherman Act (15 U.S.C. 1, 3) are amended by inserting
‘‘(which may include trade or commerce of sellers, trade
or commerce of wholesale purchasers, or trade or com-
merce of both)’’ after ‘‘or commerce’’.
(b) FINES.—Sections 1 and 3 of the Sherman Act
(15 U.S.C. 1, 3) are amended by striking ‘‘$10,000,000’’
and inserting ‘‘$100,000,000’’.
SEC. 3. AMENDMENTS TO THE CLAYTON ACT.
(a) CAUSE OF ACTION.—Section 7 of the Clayton Act
(15 U.S.C. 18) is amended by adding at the end the fol-
lowing:
‘‘For purposes of this section, the term ‘competition’
may include competition among sellers, competition among
wholesale purchasers, or competition among both.’’.
(b) DISCLOSURE
OF
INFORMATION
REGARDING
MERGERS.—Section 7A of the Clayton Act (15 U.S.C.
18a) is amended—
(1) in subsection (e)(2)—
(A) by striking ‘‘20 days’’ and inserting
‘‘30 days’’, and
(B) by striking ‘‘10 days’’ and inserting
‘‘15 days’’, and
(2) in the 1st sentence of subsection (h) by in-
serting ‘‘or as may be requested by the State attor-
ney general (as defined in section 4G)’’ before the
period.
(c) FEES REQUIRED TO FILE NOTIFICATIONS OF
MERGERS.—
(1) AMENDMENT.—Section 7A of the Clayton
Act (15 U.S.C. 18a) is amended by adding at the
end the following:
‘‘(k)(1) To file a notification required by subsection
(a), a person shall pay a filing fee to be assessed and col-
lected by the Federal Trade Commission as follows:
‘‘(A) $25,000 if the aggregate total amount de-
termined under subsection (a)(3)(B) is less than
$100,000,000.
‘‘(B) $50,000 if the aggregate total amount de-
termined under subsection (a)(3)(B) is less than
$250,000,000 but not less than $100,000,000.
‘‘(C) $100,000 if the aggregate total amount
determined under subsection (a)(3)(B) is less than
$1,000,000,000 but not less than $250,000,000.
‘‘(D) $150,000 if the aggregate total amount
determined under subsection (a)(3)(B) is not less
than $1,000,000,000.
‘‘(2) Filing fees collected under this subsection shall
be divided equally between, and credited to, the then cur-
rent appropriations for the salaries and expenses of the
Federal Trade Commission and the then current appro-
priations for the salaries and expenses of the Antitrust
Division of the Department of Justice. Collected fees in
excess of such appropriations shall be deposited in the
Treasury as general receipts.’’.
(2) CONFORMING
AMENDMENT.—Section 605
of Public Law 101–162 (103 Stat. 1031; 15 U.S.C.
18a note) is repealed.
(3) EFFECTIVE
DATE
AND
APPLICATION
OF
AMENDMENTS.—The amendments made by this sub-
section shall take effect on the 1st day of the 1st fis-
cal year beginning after the date of the enactment
of this Act and shall apply with respect to notifica-
tions filed under section 7A of the Clayton Act on
or after the date such amendments take effect.
(d) RECOVERY OF OVERCHARGES.—(1) The Clayton
Act (15 U.S.C. 12 et seq.) is amended by inserting after
section 4H the following:
‘‘SEC. 4I. (a) Any indirect purchaser in the chain of
manufacture, production, or distribution of goods or serv-
ices shall, upon proof of payment of all or any part of
any overcharge for such goods or services, be deemed to
be injured within the meaning of section 4, 4A, or 4C,
except that such indirect purchaser may recover damages
only with respect to the amount of the initial overcharge
proved to be passed on to him.
‘‘(b) Any indirect seller in the chain of manufacture,
production, or distribution of goods or services shall, upon
proof of receipt of all or any part of any underpayment
for such goods or services, be deemed to be injured within
the meaning of section 4, 4A, or 4C, except that such indi-
rect seller may recover damages only with respect to the
amount of the initial underpayment proved to be passed
on to him.
‘‘(c) In any action under section 4 or 4A, any defend-
ant, as a partial or complete defense against a damage
claim, shall be entitled to prove that—
‘‘(1) a purchaser in the chain who paid any
overcharge passed on all or any part of such over-
charge to another purchaser in such chain; or
‘‘(2) a seller in the chain who received any un-
derpayment passed on all or any part of such under-
payment to another seller in such chain.
‘‘(d)(1) In any class action brought under section 4
by purchasers or sellers, the fact of injury and the amount
of damages sustained by or passed-on to or by the mem-
bers of the class may be proven on a class-wide basis, with-
out requiring proof of such matters by each individual
member of the class. The percentage of total damages at-
tributable to a member of such class shall be the same
as the ratio of such member’s purchases or sales to the
purchases or sales of the class as a whole.
‘‘(2) In any action under section 4C, the fact of in-
jury and the amount of damages sustained by or passed-
on to or by purchasers or sellers may be proven on a class-
wide basis, without requiring proof of such matters with
respect to each individual purchaser or seller. The percent-
age of total damages attributable to a member of a class
shall be the same as the ratio of such member’s purchases
or sales to the purchases or sales of the class as a whole.
‘‘(3) Except as provided in sections 4D and 4E, dam-
ages shall not be assessed in the aggregate against a de-
fendant but shall be assessed only on behalf of any person
who makes a valid damage claim.
‘‘(e)(1) Except as provided in paragraph (2), any
damage award in a final judgment heretofore or hereafter
rendered against any defendant in any action under sec-
tion 4, 4A, or 4C shall be admissible as—
‘‘(A) prima facie evidence against any plaintiff,
and
‘‘(B) conclusive evidence against such defend-
ant,
in any other action under section 4, 4A, or 4C brought
against such defendant, as to all fully and fairly litigated
matters regarding the amount of damages passed on
which would be an estoppel as between the parties thereto.
‘‘(2) This subsection shall not apply to consent judg-
ments or decrees.
‘‘(f) In any action by purchasers or sellers under sec-
tion 4 which is brought or maintained as a class action,
the court, before it approves a settlement of such action,
shall, in the interests of justice, determine what portion
of the settlement shall be distributed to the persons on
whose behalf the action was brought or maintained and
what portion shall be distributed to their attorneys, and
in making such determination the court shall act as a fidu-
ciary for those persons on whose behalf the action was
brought or maintained.
‘‘(g) In any action under section 4—
‘‘(1) by, or on behalf of, any purchaser in the
chain of manufacture, production, or distribution of
goods or services alleging any overcharge for such
goods or services, or
‘‘(2) by, or on behalf of, any seller in the chain
of manufacture, production, or distribution of goods
or services alleging any underpayment for such
goods or services,
the court may in its discretion award a reasonable attor-
ney’s fee to the prevailing defendant upon a finding that
such purchaser or seller or his attorney acted in bad faith,
vexatiously, wantonly, or for oppressive reasons.’’.
(2) The Clayton Act is amended by inserting before
the period in section 4 the following: ‘‘, except that this
section shall not authorize suits by a foreign sovereign
government, a department or agency thereof’’.
(3) Section 1407(h) of title 28, United States Code,
is amended by striking ‘‘section 4C of’’.
SEC. 4. AMENDMENTS TO THE PACKERS AND STOCKYARDS
ACT, 1921.
(a) DEFINITIONS.—Section 2 of the Packers and
Stockyards Act, 1921 (7 U.S.C. 182) is amended by add-
ing at the end the following:
‘‘(12) The term ‘undue or unreasonable preference or
advantage’—
‘‘(A) except as provided in subparagraph (B),
includes using any practice or device to purchase or
acquire, directly or indirectly, livestock from a pro-
ducer of livestock on terms that are not offered to
producers of smaller volumes of similar livestock but
excludes a purchase or acquisition that occurs less
than 2 weeks before slaughter and in a public mar-
ket based on a competitive bidding process; and
‘‘(B) does not include the payment of—
‘‘(i) a price premium based on standards
for product grade and quality, or for a produc-
tion method, that enhance the value of the meat
if such premium is offered in a manner that
does not discriminate against producers of
smaller volumes of similar livestock who meet
such standards; or
‘‘(ii) different prices to reflect differences
in the cost of handling livestock.
‘‘(13) The term ‘public market based on a competitive
bidding process’ means a market in which—
‘‘(A) potential buyers and sellers have access;
‘‘(B) multiple blind bids can be made; and
‘‘(C) there is contemporaneous transparency.’’.
(b) COMMERCE.—Section 202(e) of the Packers and
Stockyards Act, 1921 (7 U.S.C. 192(e)) is amended by
inserting ‘‘(which may include trade or commerce of sell-
ers, trade or commerce of wholesale purchasers, or trade
or commerce of both)’’ after ‘‘commerce’’.
SEC. 5. ESTABLISHMENT OF COMMISSION.
(a) ESTABLISHMENT.—There is established a com-
mission to be known as the Agriculture Concentration and
Market Power Review Commission (hereafter in this sec-
tion referred to as the ‘‘Commission’’).