Standards Development Organization Advancement Act of 2003
PL 108-237 (H.R.1086), enacted 06/22/2004

118 STAT. 661
PUBLIC LAW 108–237—JUNE 22, 2004
Public Law 108–237
108th Congress
An Act
To encourage the development and promulgation of voluntary consensus standards
by providing relief under the antitrust laws to standards development organiza-
tions with respect to conduct engaged in for the purpose of developing voluntary
consensus standards, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
TITLE 
I—STANDARDS 
DEVELOPMENT
ORGANIZATION ADVANCEMENT ACT
OF 2004
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Standards Development
Organization Advancement Act of 2004’’.
SEC. 102. FINDINGS.
The Congress finds the following:
(1) In 1993, the Congress amended and renamed the
National Cooperative Research Act of 1984 (now known as
the National Cooperative Research and Production Act of 1993
(15 U.S.C. 4301 et seq.)) by enacting the National Cooperative
Production Amendments of 1993 (Public Law 103–42) to encour-
age the use of collaborative, procompetitive activity in the form
of research and production joint ventures that provide adequate
disclosure to the antitrust enforcement agencies about the
nature and scope of the activity involved.
(2) Subsequently, in 1995, the Congress in enacting the
National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) recognized the importance of technical
standards developed by voluntary consensus standards bodies
to our national economy by requiring the use of such standards
to the extent practicable by Federal agencies and by encour-
aging Federal agency representatives to participate in ongoing
standards development activities. The Office of Management
and Budget on February 18, 1998, revised Circular A–119 to
reflect these changes made in law.
(3) Following enactment of the National Technology
Transfer and Advancement Act of 1995, technical standards
developed or adopted by voluntary consensus standards bodies
have replaced thousands of unique Government standards and
specifications allowing the national economy to operate in a
more unified fashion.
15 USC 4301
note.
15 USC 4301
note.
Standards
Development
Organization
Advancement Act
of 2004.
June 22, 2004
[H.R. 1086]
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118 STAT. 662
PUBLIC LAW 108–237—JUNE 22, 2004
(4) Having the same technical standards used by Federal
agencies and by the private sector permits the Government
to avoid the cost of developing duplicative Government stand-
ards and to more readily use products and components designed
for the commercial marketplace, thereby enhancing quality and
safety and reducing costs.
(5) Technical standards are written by hundreds of non-
profit voluntary consensus standards bodies in a nonexclu-
sionary fashion, using thousands of volunteers from the private
and public sectors, and are developed under the standards
development principles set out in Circular Number A–119, as
revised February 18, 1998, of the Office of Management and
Budget, including principles that require openness, balance,
transparency, consensus, and due process. Such principles pro-
vide for—
(A) notice to all parties known to be affected by the
particular standards development activity,
(B) the opportunity to participate in standards develop-
ment or modification,
(C) balancing interests so that standards development
activities are not dominated by any single group of
interested persons,
(D) readily available access to essential information
regarding proposed and final standards,
(E) the requirement that substantial agreement be
reached on all material points after the consideration of
all views and objections, and
(F) the right to express a position, to have it considered,
and to appeal an adverse decision.
(6) There are tens of thousands of voluntary consensus
standards available for government use. Most of these stand-
ards are kept current through interim amendments and
interpretations, issuance of addenda, and periodic reaffirma-
tion, revision, or reissuance every 3 to 5 years.
(7) Standards developed by government entities generally
are not subject to challenge under the antitrust laws.
(8) Private developers of the technical standards that are
used as Government standards are often not similarly pro-
tected, leaving such developers vulnerable to being named as
codefendants in lawsuits even though the likelihood of their
being held liable is remote in most cases, and they generally
have limited resources to defend themselves in such lawsuits.
(9) Standards development organizations do not stand to
benefit from any antitrust violations that might occur in the
voluntary consensus standards development process.
(10) As was the case with respect to research and produc-
tion joint ventures before the passage of the National Coopera-
tive Research and Production Act of 1993, if relief from the
threat of liability under the antitrust laws is not granted to
voluntary consensus standards bodies, both regarding the
development of new standards and efforts to keep existing
standards current, such bodies could be forced to cut back
on standards development activities at great financial cost both
to the Government and to the national economy.
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118 STAT. 663
PUBLIC LAW 108–237—JUNE 22, 2004
SEC. 103. DEFINITIONS.
Section 2 of the National Cooperative Research and Production
Act of 1993 (15 U.S.C. 4301) is amended—
(1) in subsection (a) by adding at the end the following:
‘‘(7) The term ‘standards development activity’ means any
action taken by a standards development organization for the
purpose of developing, promulgating, revising, amending,
reissuing, interpreting, or otherwise maintaining a voluntary
consensus standard, or using such standard in conformity
assessment activities, including actions relating to the intellec-
tual property policies of the standards development organiza-
tion.
‘‘(8) The term ‘standards development organization’ means
a domestic or international organization that plans, develops,
establishes, or coordinates voluntary consensus standards using
procedures that incorporate the attributes of openness, balance
of interests, due process, an appeals process, and consensus
in a manner consistent with the Office of Management and
Budget Circular Number A–119, as revised February 10, 1998.
The term ‘standards development organization’ shall not, for
purposes of this Act, include the parties participating in the
standards development organization.
‘‘(9) The term ‘technical standard’ has the meaning given
such term in section 12(d)(4) of the National Technology
Transfer and Advancement Act of 1995.
‘‘(10) The term ‘voluntary consensus standard’ has the
meaning given such term in Office of Management and Budget
Circular Number A–119, as revised February 10, 1998.’’; and
(2) by adding at the end the following:
‘‘(c) The term ‘standards development activity’ excludes the
following activities:
‘‘(1) Exchanging information among competitors relating
to cost, sales, profitability, prices, marketing, or distribution
of any product, process, or service that is not reasonably
required for the purpose of developing or promulgating a vol-
untary consensus standard, or using such standard in con-
formity assessment activities.
‘‘(2) Entering into any agreement or engaging in any other
conduct that would allocate a market with a competitor.
‘‘(3) Entering into any agreement or conspiracy that would
set or restrain prices of any good or service.’’.
SEC. 104. RULE OF REASON STANDARD.
Section 3 of the National Cooperative Research and Production
Act of 1993 (15 U.S.C. 4302) is amended by striking ‘‘of any person
in making or performing a contract to carry out a joint venture
shall’’ and inserting the following: ‘‘of—
‘‘(1) any person in making or performing a contract to
carry out a joint venture, or
‘‘(2) a standards development organization while engaged
in a standards development activity,
shall’’.
SEC. 105. LIMITATION ON RECOVERY.
Section 4 of the National Cooperative Research and Production
Act of 1993 (15 U.S.C. 4303) is amended—
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118 STAT. 664
PUBLIC LAW 108–237—JUNE 22, 2004
(1) in subsections (a)(1), (b)(1), and (c)(1) by inserting ‘‘,
or for a standards development activity engaged in by a stand-
ards development organization against which such claim is
made’’ after ‘‘joint venture’’,
(2) in subsection (e)—
(A) by inserting ‘‘, or of a standards development
activity engaged in by a standards development organiza-
tion’’ before the period at the end, and
(B) by redesignating such subsection as subsection (f),
and
(3) by inserting after subsection (d) the following:
‘‘(e) Subsections (a), (b), and (c) shall not be construed to modify
the liability under the antitrust laws of any person (other than
a standards development organization) who—
‘‘(1) directly (or through an employee or agent) participates
in a standards development activity with respect to which
a violation of any of the antitrust laws is found,
‘‘(2) is not a fulltime employee of the standards development
organization that engaged in such activity, and
‘‘(3) is, or is an employee or agent of a person who is,
engaged in a line of commerce that is likely to benefit directly
from the operation of the standards development activity with
respect to which such violation is found.’’.
SEC. 106. ATTORNEY FEES.
Section 5 of the National Cooperative Research and Production
Act of 1993 (15 U.S.C. 4304) is amended—
(1) in subsection (a) by inserting ‘‘, or of a standards
development activity engaged in by a standards development
organization’’ after ‘‘joint venture’’, and
(2) by adding at the end the following:
‘‘(c) Subsections (a) and (b) shall not apply with respect to
any person who—
‘‘(1) directly participates in a standards development
activity with respect to which a violation of any of the antitrust
laws is found,
‘‘(2) is not a fulltime employee of a standards development
organization that engaged in such activity, and
‘‘(3) is, or is an employee or agent of a person who is,
engaged in a line of commerce that is likely to benefit directly
from the operation of the standards development activity with
respect to which such violation is found.’’.
SEC. 107. DISCLOSURE OF STANDARDS DEVELOPMENT ACTIVITY.
Section 6 of the National Cooperative Research and Production
Act of 1993 (15 U.S.C. 4305) is amended—
(1) in subsection (a)—
(A) by redesignating paragraphs (1), (2), and (3) as
subparagraphs (A), (B), and (C), respectively,
(B) by inserting ‘‘(1)’’ after ‘‘(a)’’, and
(C) by adding at the end the following:
‘‘(2) A standards development organization may, not later than
90 days after commencing a standards development activity engaged
in for the purpose of developing or promulgating a voluntary con-
sensus standards or not later than 90 days after the date of the
enactment of the Standards Development Organization Advance-
ment Act of 2004, whichever is later, file simultaneously with
Deadline.
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118 STAT. 665
PUBLIC LAW 108–237—JUNE 22, 2004
the Attorney General and the Commission, a written notification
disclosing—
‘‘(A) the name and principal place of business of the stand-
ards development organization, and
‘‘(B) documents showing the nature and scope of such
activity.
Any standards development organization may file additional disclo-
sure notifications pursuant to this section as are appropriate to
extend the protections of section 4 to standards development activi-
ties that are not covered by the initial filing or that have changed
significantly since the initial filing.’’,
(2) in subsection (b)—
(A) in the 1st sentence by inserting ‘‘, or a notice
with respect to such standards development activity that
identifies the standards development organization engaged
in such activity and that describes such activity in general
terms’’ before the period at the end, and
(B) in the last sentence by inserting ‘‘or available to
such organization, as the case may be’’ before the period,
(3) in subsection (d)(2) by inserting ‘‘, or the standards
development activity,’’ after ‘‘venture’’,
(4) in subsection (e)—
(A) by striking ‘‘person who’’ and inserting ‘‘person
or standards development organization that’’, and
(B) by inserting ‘‘or any standards development
organization’’ after ‘‘person’’ the last place it appears, and
(5) in subsection (g)(1) by inserting ‘‘or standards develop-
ment organization’’ after ‘‘person’’.
SEC. 108. RULE OF CONSTRUCTION.
Nothing in this title shall be construed to alter or modify
the antitrust treatment under existing law of—
(1) parties participating in standards development activity
of standards development organizations within the scope of
this title, including the existing standard under which the
conduct of the parties is reviewed, regardless of the standard
under which the conduct of the standards development
organizations in which they participate are reviewed, or
(2) other organizations and parties engaged in standard-
setting processes not within the scope of this amendment to
the title.
TITLE II—ANTITRUST CRIMINAL PEN-
ALTY ENHANCEMENT AND REFORM
ACT OF 2004
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Antitrust Criminal Penalty
Enhancement and Reform Act of 2004’’.
15 USC 1 note.
Antitrust
Criminal Penalty
Enhancement
and Reform Act
of 2004
15 USC 4301
note.
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118 STAT. 666
PUBLIC LAW 108–237—JUNE 22, 2004
Subtitle A—Antitrust Enforcement
Enhancements and Cooperation Incentives
SEC. 211. SUNSET.
(a) IN GENERAL.—Except as provided in subsection (b), the
provisions of sections 211 through 214 shall cease to have effect
5 years after the date of enactment of this Act.
(b) EXCEPTION.—With respect to an applicant who has entered
into an antitrust leniency agreement on or before the date on
which the provisions of sections 211 through 214 of this subtitle
shall cease to have effect, the provisions of sections 211 through
214 of this subtitle shall continue in effect.
SEC. 212. DEFINITIONS.
In this subtitle:
(1) ANTITRUST
DIVISION.—The term ‘‘Antitrust Division’’
means the United States Department of Justice Antitrust Divi-
sion.
(2) ANTITRUST LENIENCY AGREEMENT.—The term ‘‘antitrust
leniency agreement,’’ or ‘‘agreement,’’ means a leniency letter
agreement, whether conditional or final, between a person and
the Antitrust Division pursuant to the Corporate Leniency
Policy of the Antitrust Division in effect on the date of execution
of the agreement.
(3) ANTITRUST LENIENCY APPLICANT.—The term ‘‘antitrust
leniency applicant,’’ or ‘‘applicant,’’ means, with respect to an
antitrust leniency agreement, the person that has entered into
the agreement.
(4) CLAIMANT.—The term ‘‘claimant’’ means a person or
class, that has brought, or on whose behalf has been brought,
a civil action alleging a violation of section 1 or 3 of the
Sherman Act or any similar State law, except that the term
does not include a State or a subdivision of a State with
respect to a civil action brought to recover damages sustained
by the State or subdivision.
(5) COOPERATING INDIVIDUAL.—The term ‘‘cooperating indi-
vidual’’ means, with respect to an antitrust leniency agreement,
a current or former director, officer, or employee of the antitrust
leniency applicant who is covered by the agreement.
(6) PERSON.—The term ‘‘person’’ has the meaning given
it in subsection (a) of the first section of the Clayton Act.
SEC. 213. LIMITATION ON RECOVERY.
(a) IN GENERAL.—Subject to subsection (d), in any civil action
alleging a violation of section 1 or 3 of the Sherman Act, or alleging
a violation of any similar State law, based on conduct covered
by a currently effective antitrust leniency agreement, the amount
of damages recovered by or on behalf of a claimant from an antitrust
leniency applicant who satisfies the requirements of subsection
(b), together with the amounts so recovered from cooperating
individuals who satisfy such requirements, shall not exceed that
portion of the actual damages sustained by such claimant which
is attributable to the commerce done by the applicant in the goods
or services affected by the violation.
(b) REQUIREMENTS.—Subject to subsection (c), an antitrust leni-
ency applicant or cooperating individual satisfies the requirements
15 USC 1 note.
15 USC 1 note.
15 USC 1 note.
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118 STAT. 667
PUBLIC LAW 108–237—JUNE 22, 2004
of this subsection with respect to a civil action described in sub-
section (a) if the court in which the civil action is brought deter-
mines, after considering any appropriate pleadings from the claim-
ant, that the applicant or cooperating individual, as the case may
be, has provided satisfactory cooperation to the claimant with
respect to the civil action, which cooperation shall include—
(1) providing a full account to the claimant of all facts
known to the applicant or cooperating individual, as the case
may be, that are potentially relevant to the civil action;
(2) furnishing all documents or other items potentially
relevant to the civil action that are in the possession, custody,
or control of the applicant or cooperating individual, as the
case may be, wherever they are located; and
(3)(A) in the case of a cooperating individual—
(i) making himself or herself available for such inter-
views, depositions, or testimony in connection with the
civil action as the claimant may reasonably require; and
(ii) responding completely and truthfully, without
making any attempt either falsely to protect or falsely
to implicate any person or entity, and without intentionally
withholding any potentially relevant information, to all
questions asked by the claimant in interviews, depositions,
trials, or any other court proceedings in connection with
the civil action; or
(B) in the case of an antitrust leniency applicant, using
its best efforts to secure and facilitate from cooperating individ-
uals covered by the agreement the cooperation described in
clauses (i) and (ii) and subparagraph (A).
(c) TIMELINESS.—If the initial contact by the antitrust leniency
applicant with the Antitrust Division regarding conduct covered
by the antitrust leniency agreement occurs after a State, or subdivi-
sion of a State, has issued compulsory process in connection with
an investigation of allegations of a violation of section 1 or 3
of the Sherman Act or any similar State law based on conduct
covered by the antitrust leniency agreement or after a civil action
described in subsection (a) has been filed, then the court shall
consider, in making the determination concerning satisfactory
cooperation described in subsection (b), the timeliness of the
applicant’s initial cooperation with the claimant.
(d) CONTINUATION.—Nothing in this section shall be construed
to modify, impair, or supersede the provisions of sections 4, 4A,
and 4C of the Clayton Act relating to the recovery of costs of
suit, including a reasonable attorney’s fee, and interest on damages,
to the extent that such recovery is authorized by such sections.
SEC. 214. RIGHTS, AUTHORITIES, AND LIABILITIES NOT AFFECTED.
Nothing in this subtitle shall be construed to—
(1) affect the rights of the Antitrust Division to seek a
stay or protective order in a civil action based on conduct
covered by an antitrust leniency agreement to prevent the
cooperation described in section 213(b) from impairing or
impeding the investigation or prosecution by the Antitrust Divi-
sion of conduct covered by the agreement;
(2) create any right to challenge any decision by the Anti-
trust Division with respect to an antitrust leniency agreement;
or
15 USC 1 note.
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118 STAT. 668
PUBLIC LAW 108–237—JUNE 22, 2004
(3) affect, in any way, the joint and several liability of
any party to a civil action described in section 213(a), other
than that of the antitrust leniency applicant and cooperating
individuals as provided in section 213(a) of this title.
SEC. 215. INCREASED PENALTIES FOR ANTITRUST VIOLATIONS.
(a) RESTRAINT OF TRADE AMONG THE STATES.—Section 1 of
the Sherman Act (15 U.S.C. 1) is amended by—
(1) striking ‘‘$10,000,000’’ and inserting ‘‘$100,000,000’’;
(2) striking ‘‘$350,000’’ and inserting ‘‘$1,000,000’’; and
(3) striking ‘‘three’’ and inserting ‘‘10’’.
(b) MONOPOLIZING TRADE.—Section 2 of the Sherman Act (15
U.S.C. 2) is amended by—
(1) striking ‘‘$10,000,000’’ and inserting ‘‘$100,000,000’’;
(2) striking ‘‘$350,000’’ and inserting ‘‘$1,000,000’’; and
(3) striking ‘‘three’’ and inserting ‘‘10’’.
(c) OTHER RESTRAINTS OF TRADE.—Section 3 of the Sherman
Act (15 U.S.C. 3) is amended by—
(1) striking ‘‘$10,000,000’’ and inserting ‘‘$100,000,000’’;
(2) striking ‘‘$350,000’’ and inserting ‘‘$1,000,000’’; and
(3) striking ‘‘three’’ and inserting ‘‘10’’.
Subtitle B—Tunney Act Reform
SEC. 221. PUBLIC INTEREST DETERMINATION.
(a) CONGRESSIONAL
FINDINGS
AND
DECLARATION
OF
PUR-
POSES.—
(1) FINDINGS.—Congress finds that—
(A) the purpose of the Tunney Act was to ensure that
the entry of antitrust consent judgments is in the public
interest; and
(B) it would misconstrue the meaning and Congres-
sional intent in enacting the Tunney Act to limit the discre-
tion of district courts to review antitrust consent judgments
solely to determining whether entry of those consent judg-
ments would make a ‘‘mockery of the judicial function’’.
(2) PURPOSES.—The purpose of this section is to effectuate
the original Congressional intent in enacting the Tunney Act
and to ensure that United States settlements of civil antitrust
suits are in the public interest.
(b) PUBLIC INTEREST DETERMINATION.—Section 5 of the Clayton
Act (15 U.S.C. 16) is amended—
(1) in subsection (d), by inserting at the end the following:
‘‘Upon application by the United States, the district court may,
for good cause (based on a finding that the expense of publica-
tion in the Federal Register exceeds the public interest benefits
to be gained from such publication), authorize an alternative
method of public dissemination of the public comments received
and the response to those comments.’’;
(2) in subsection (e)—
(A) in the matter before paragraph (1), by—
(i) striking ‘‘court may’’ and inserting ‘‘court shall’’;
and
(ii) inserting ‘‘(1)’’ before ‘‘Before’’; and
(B) striking paragraphs (1) and (2) and inserting the
following:
15 USC 16 note.
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118 STAT. 669
PUBLIC LAW 108–237—JUNE 22, 2004
LEGISLATIVE HISTORY—H.R. 1086:
HOUSE REPORTS: No. 108–125 and Pt. 2 (Comm. on the Judiciary).
CONGRESSIONAL RECORD:
Vol. 149 (2003): June 10, considered and passed House.
Vol. 150 (2004): Apr. 2, considered and passed Senate, amended.
June 2, House concurred in Senate amendment.
‘‘(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement
and modification, duration of relief sought, anticipated effects
of alternative remedies actually considered, whether its terms
are ambiguous, and any other competitive considerations
bearing upon the adequacy of such judgment that the court
deems necessary to a determination of whether the consent
judgment is in the public interest; and
‘‘(B) the impact of entry of such judgment upon competition
in the relevant market or markets, upon the public generally
and individuals alleging specific injury from the violations set
forth in the complaint including consideration of the public
benefit, if any, to be derived from a determination of the issues
at trial.
‘‘(2) Nothing in this section shall be construed to require the
court to conduct an evidentiary hearing or to require the court
to permit anyone to intervene.’’; and
(3) in subsection (g), by inserting ‘‘by any officer, director,
employee, or agent of such defendant’’ before ‘‘, or other person’’.
Approved June 22, 2004.
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