II 116th CONGRESS 1st Session S. 2237 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. Short title This Act may be cited as the Monopolization Deterrence Act of 2019 . 2. Findings and purposes (a) Findings Congress finds that— (1) competitive markets are critical to ensuring opportunity for all people in the United States; (2) when companies compete, businesses offer the highest quality and choice of goods and services for the lowest possible prices to consumers and other businesses; (3) competition fosters small business growth, reduces economic inequality, and spurs innovation; (4) in the United States economy today, the exercise of market power is substantial and growing; (5) anticompetitive exclusionary conduct is an important source of market power and a substantial threat to the United States economy; (6) the exercise of market power tends to lessen the rate of innovation, slow the growth of productivity, and increase economic inequality in the directly affected markets and economy-wide; (7) the civil remedies currently available to cure violations of section 2 of the Sherman Act ( 15 U.S.C. 2 ), including injunctions, equitable monetary relief, and private damages, have not proven sufficient, on their own, to deter anticompetitive exclusionary conduct; and (8) in some cases, effective deterrence requires the imposition of civil penalties, alone or in combination with existing remedies, including structural relief, behavioral relief, private damages, and equitable monetary relief, including disgorgement and restitution. (b) Purposes The purposes of this Act are— (1) to enable the Department of Justice and the Federal Trade Commission to seek civil monetary penalties, in addition to existing remedies, for monopolization offenses and anticompetitive exclusionary conduct; and (2) to give the Department of Justice and the Federal Trade Commission an additional enforcement tool to craft remedies for individual violations that are effective to deter future unlawful conduct and proportionate to the gravity of the violation. 3. Civil penalties (a) Civil penalty amendments (1) Sherman Act Section 2 of the Sherman Act ( 15 U.S.C. 2 ) is amended— (A) by striking Every and inserting (a) Every ; and (B) by adding at the end the following: (b) (1) Every person who violates this section shall be liable to the United States for a civil penalty of not more than the greater of— (A) 15 percent of the total United States revenues of the person for the previous calendar year; or (B) 30 percent of the United States revenues of the person in any part of the trade or commerce related to or targeted by the unlawful conduct under this section during the period of the unlawful conduct. (2) A civil penalty under this section may be recovered in a civil action brought by the United States. . (2) Federal Trade Commission Act Section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ) is amended by adding at the end the following: (o) (1) The Commission may commence a civil action in a district court of the United States against any person, partnership, or corporation for a violation of subsection (a)(1) respecting an unfair method of competition that constitutes a violation of section 2 of the Sherman Act ( 15 U.S.C. 2 ) and to recover a civil penalty for such violation. (2) In an action under paragraph (1), any person, partnership, or corporation found to have violated subsection (a)(1) respecting an unfair method of competition that constitutes a violation of section 2 of the Sherman Act ( 15 U.S.C. 2 ) shall be liable for a civil penalty of not more than the greater of— (A) 15 percent of the total United States revenues of the person, partnership, or corporation for the previous calendar year; or (B) 30 percent of the United States revenues of the person, partnership, or corporation in any line of commerce related to or targeted by the unlawful conduct described in paragraph (1) during the period of the unlawful conduct. . (b) Rule of construction (1) Civil penalties The civil penalties provided in subsection (b) of section 2 of the Sherman Act ( 15 U.S.C. 2 ) and subsection (o) of section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as added by subsection (a) of this section, are in addition to, and not in lieu of, any other remedy provided by Federal law, including under— (A) section 4 or 16 of the Clayton Act ( 15 U.S.C. 15 , 26); or (B) section 13(b) of the Federal Trade Commission Act ( 15 U.S.C. 53(b) ). (2) Authorities Nothing in this paragraph may be construed to affect any authority of the Attorney General or the Federal Trade Commission under any other provision of law. 4. Joint civil penalty guidelines (a) In general Not later than 1 year after the date of enactment of this Act, the Attorney General and the Federal Trade Commission shall issue joint guidelines reflecting agency policies for determining the appropriate amount of a civil penalty to be sought under subsection (b) of section 2 of the Sherman Act ( 15 U.S.C. 2 ) and subsection (o) of section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as added by section 3(a) of this Act, with the goal of promoting transparency and crafting remedies for individual violations that are effective in deterring future unlawful conduct and proportionate to the gravity of the violation. (b) Considerations In establishing the guidelines described in subsection (a), the Attorney General and the Federal Trade Commission shall consider the relevant factors to be used for calculating an appropriate civil penalty for a particular violation, including— (1) the volume of commerce affected; (2) the duration and severity of the unlawful conduct; (3) any action taken or attempted by the person to conceal the unlawful conduct; (4) the extent to which the unlawful conduct was egregious or a clear violation of the law; (5) whether the civil penalty is to be applied in combination with other remedies for the unlawful conduct, including structural remedies, behavioral conditions, or equitable monetary relief, including disgorgement and restitution; (6) whether the person has previously engaged in the same or similar anticompetitive conduct; and (7) whether the person undertook the conduct in violation of a preexisting consent decree or court order. 5. Federal Trade Commission litigation authority Section 16(a)(2) of the Federal Trade Commission Act ( 15 U.S.C. 56(a)(2) ) is amended— (1) in subparagraph (D), by striking or at the end; (2) in subparagraph (E)— (A) by moving the margins 2 ems to the left; and (B) by striking the semicolon and inserting ; or ; and (3) by inserting after subparagraph (E) the following: (F) to recover civil penalties under section 5(o) of this Act; .