[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 467 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                 S. 467

  To restate and improve section 7A of the Clayton Act, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 25, 1999

 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 restate and improve section 7A of the Clayton Act, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Antitrust Merger Review Act''.

SEC. 2. RESTATEMENT AND IMPROVEMENT OF SECTION 7A OF THE CLAYTON ACT.

    (a) In General.--Section 7A of the Clayton Act (15 U.S.C. 18a) is 
amended to read as follows:
    ``Sec. 7A. (a) Except as exempted pursuant to subsection (c), no 
person shall acquire, directly or indirectly, any voting securities or 
assets of any other person, unless both persons (or in the case of a 
tender offer, the acquiring person) file notification pursuant to rules 
under subsection (d)(1) and the waiting period described in subsection 
(b)(1) has expired, if--
            ``(1) the acquiring person, or the person whose voting 
        securities or assets are being acquired, is engaged in commerce 
        or in any activity affecting commerce;
            ``(2)(A) any voting securities or assets of a person 
        engaged in manufacturing which has annual net sales or total 
        assets of $10,000,000 or more are being acquired by any person 
        which has total assets or annual net sales of $100,000,000 or 
        more;
            ``(B) any voting securities or assets of a person not 
        engaged in manufacturing which has total assets of $10,000,000 
        or more are being acquired by any person which has total assets 
        or annual net sales of $100,000,000 or more; or
            ``(C) any voting securities or assets of a person with 
        annual net sales or total assets of $100,000,000 or more are 
        being acquired by any person with total assets or annual net 
        sales of $10,000,000 or more; and
            ``(3) as a result of such acquisition, the acquiring person 
        would hold--
                    ``(A) 15 per centum or more of the voting 
                securities or assets of the acquired person, or
                    ``(B) an aggregate total amount of the voting 
                securities and assets of the acquired person in excess 
                of $15,000,000.
In the case of a tender offer, the person whose voting securities are 
sought to be acquired by a person required to file notification under 
this subsection shall file notification pursuant to rules under 
subsection (d).
    ``(b)(1) The waiting period required under subsection (a) shall--
            ``(A) begin on the date of the receipt by the Federal Trade 
        Commission and the Assistant Attorney General in charge of the 
        Antitrust Division of the Department of Justice (hereinafter 
        referred to in this section as the `Assistant Attorney 
        General') of--
                    ``(i) the completed notification required under 
                subsection (a), or
                    ``(ii) if such notification is not completed, the 
                notification to the extent completed and a statement of 
                the reasons for such noncompliance,
        from both persons, or, in the case of a tender offer, the 
        acquiring person; and
            ``(B) end on the thirtieth day after the date of such 
        receipt (or in the case of a cash tender offer, the fifteenth 
        day), or on such later date as may be set under subsection 
        (e)(2) or (g)(2).
    ``(2) The Federal Trade Commission and the Assistant Attorney 
General may, in individual cases, terminate the waiting period 
specified in paragraph (1) and allow any person to proceed with any 
acquisition subject to this section, and promptly shall cause to be 
published in the Federal Register a notice that neither intends to take 
any action within such period with respect to such acquisition.
    ``(3) As used in this section--
            ``(A) The term `voting securities' means any securities 
        which at present or upon conversion entitle the owner or holder 
        thereof to vote for the election of directors of the issuer or, 
        with respect to unincorporated issuers, persons exercising 
        similar functions.
            ``(B) The amount or percentage of voting securities or 
        assets of a person which are acquired or held by another person 
        shall be determined by aggregating the amount or percentage of 
        such voting securities or assets held or acquired by such other 
        person and each affiliate thereof.
    ``(c) The following classes of transactions are exempt from the 
requirements of this section--
            ``(1) acquisitions of goods or realty transferred in the 
        ordinary course of business;
            ``(2) acquisitions of bonds, mortgages, deeds of trust, or 
        other obligations which are not voting securities;
            ``(3) acquisitions of voting securities of an issuer at 
        least 50 per centum of the voting securities of which are owned 
        by the acquiring person prior to such acquisition;
            ``(4) transfers to or from a Federal agency or a State or 
        political subdivision thereof;
            ``(5) transactions specifically exempted from the antitrust 
        laws by Federal statute;
            ``(6) transactions specifically exempted from the antitrust 
        laws by Federal statute if approved by a Federal agency, if 
        copies of all information and documentary material filed with 
        such agency are contemporaneously filed with the Federal Trade 
        Commission and the Assistant Attorney General;
            ``(7) transactions which require agency approval under 
        section 10(e) of the Home Owners' Loan Act (12 U.S.C. 1467a), 
        section 18(c) of the Federal Deposit Insurance Act (12 U.S.C. 
        1828(c)), or section 3 of the Bank Holding Company Act of 1956 
        (12 U.S.C. 1842);
            ``(8) transactions which require agency approval under 
        section 4 of the Bank Holding Company Act of 1956 (12 U.S.C. 
        1843) or section 5 of the Home Owners' Loan Act (12 U.S.C. 
        1464), if copies of all information and documentary material 
        filed with any such agency are contemporaneously filed with the 
        Federal Trade Commission and the Assistant Attorney General at 
        least 30 days prior to consummation of the proposed 
        transaction;
            ``(9) acquisitions, solely for the purpose of investment, 
        of voting securities, if, as a result of such acquisition, the 
        securities acquired or held do not exceed 10 per centum of the 
        outstanding voting securities of the issuer;
            ``(10) acquisitions of voting securities, if, as a result 
        of such acquisition, the voting securities acquired do not 
        increase, directly or indirectly, the acquiring person's per 
        centum share of outstanding voting securities of the issuer;
            ``(11) acquisitions, solely for the purpose of investment, 
        by any bank, banking association, trust company, investment 
        company, or insurance company, of (A) voting securities 
        pursuant to a plan of reorganization or dissolution; or (B) 
        assets in the ordinary course of its business; and
            ``(12) such other acquisitions, transfers, or transactions, 
        as may be exempted under subsection (d)(2)(B).
    ``(d) The Federal Trade Commission, with the concurrence of the 
Assistant Attorney General and by rule in accordance with section 553 
of title 5, United States Code, consistent with the purposes of this 
section--
            ``(1) shall require that the notification required under 
        subsection (a) be in such form and contain such documentary 
        material and information relevant to a proposed acquisition as 
        is necessary and appropriate to enable the Federal Trade 
        Commission and the Assistant Attorney General to determine 
        whether such acquisition may, if consummated, violate the 
        antitrust laws; and
            ``(2) may--
                    ``(A) define the terms used in this section;
                    ``(B) exempt, from the requirements of this 
                section, classes of persons, acquisitions, transfers, 
                or transactions which are not likely to violate the 
                antitrust laws; and
                    ``(C) prescribe such other rules as may be 
                necessary and appropriate to carry out the purposes of 
                this section.
    ``(e)(1) The Federal Trade Commission or the Assistant Attorney 
General may, prior to the expiration of the 30-day waiting period (or 
in the case of a cash tender offer, the 15-day waiting period) 
specified in subsection (b)(1), require the submission of additional 
information or documentary material relevant to the proposed 
acquisition, from a person required to file notification with respect 
to such acquisition under subsection (a) prior to the expiration of the 
waiting period specified in subsection (b)(1), or from any officer, 
director, partner, agent, or employee of such person.
    ``(2) The Federal Trade Commission or the Assistant Attorney 
General, in its or his discretion, may extend the 30-day waiting period 
(or in the case of a cash tender offer, the 15-day waiting period) 
specified in subsection (b)(1) for an additional period of not more 
than 20 days (or in the case of a cash tender offer, 10 days) after the 
date on which the Federal Trade Commission or the Assistant Attorney 
General, as the case may be, receives from any person to whom a request 
is made under paragraph (1), or in the case of tender offers, the 
acquiring person, (A) all the information and documentary material 
required to be submitted pursuant to such a request, or (B) if such 
request is not fully complied with, the information and documentary 
material submitted and a statement of the reasons for such 
noncompliance. Such additional period may be further extended only by 
the United States district court, upon an application by the Federal 
Trade Commission or the Assistant Attorney General pursuant to 
subsection (g)(2).
    ``(f) If a proceeding is instituted or an action is filed by the 
Federal Trade Commission, alleging that a proposed acquisition violates 
section 7 of this Act or section 5 of the Federal Trade Commission Act, 
or an action is filed by the United States, alleging that a proposed 
acquisition violates such section 7 or section 1 or 2 of the Sherman 
Act, and the Federal Trade Commission or the Assistant Attorney General 
(1) files a motion for a preliminary injunction against consummation of 
such acquisition pendente lite, and (2) certifies the United States 
district court for the judicial district within which the respondent 
resides or carries on business, or in which the action is brought, that 
it or he believes that the public interest requires relief pendente 
lite pursuant to this subsection, then upon the filing of such motion 
and certification, the chief judge of such district court shall 
immediately notify the chief judge of the United States court of 
appeals for the circuit in which such district court is located, who 
shall designate a United States district judge to whom such action 
shall be assigned for all purposes.
    ``(g)(1) Any person, or any officer, director, or partner thereof, 
who fails to comply with any provision of this section shall be liable 
to the United States for a civil penalty of not more than $10,000 for 
each day during which such person is in violation of this section. Such 
penalty may be recovered in a civil action brought by the United 
States.
    ``(2) If any person, or any officer, director, partner, agent, or 
employee thereof, fails substantially to comply with the notification 
requirement under subsection (a) or any request for the submission of 
additional information or documentary material under subsection (e)(1) 
within the waiting period specified in subsection (b)(1) and as may be 
extended under subsection (e)(2), the United States district court--
            ``(A) may order compliance;
            ``(B) shall extend the waiting period specified in 
        subsection (b)(1) and as may have been extended under 
        subsection (e)(2) until there has been substantial compliance, 
        except that, in the case of a tender offer, the court may not 
        extend such waiting period on the basis of a failure, by the 
        person whose stock is sought to be acquired, to comply 
        substantially with such notification requirement or any such 
        request; and
            ``(C) may grant such other equitable relief as the court in 
        its discretion determines necessary or appropriate,
upon application of the Federal Trade Commission or the Assistant 
Attorney General.
    ``(h) Any information or documentary material filed with the 
Assistant Attorney General or the Federal Trade Commission pursuant to 
this section shall be exempt from disclosure under section 552 of title 
5, United States Code, and no such information or documentary material 
may be made public, except as may be relevant to any administrative or 
judicial action or proceeding. Nothing in this section is intended to 
prevent disclosure to either body of Congress or to any duly authorized 
committee or subcommittee of Congress.
    ``(i)(1) Any action taken by the Federal Trade Commission or the 
Assistant Attorney General or any failure of the Federal Trade 
Commission or the Assistant Attorney General to take any action under 
this section shall not bar any proceeding or any action with respect to 
such acquisition at any time under any other section of this Act or any 
other provision of law.
    ``(2) Nothing contained in this section shall limit the authority 
of the Assistant Attorney General or the Federal Trade Commission to 
secure at any time from any person documentary material, oral 
testimony, or other information under the Antitrust Civil Process Act, 
the Federal Trade Commission Act, or any other provision of law.
    ``(j) Beginning not later than January 1, 1978, the Federal Trade 
Commission, with the concurrence of the Assistant Attorney General, 
shall annually report to Congress on the operation of this section. 
Such report shall include an assessment of the effects of this section, 
of the effects, purpose, and need for any rules promulgated pursuant 
thereto, and any recommendations for revisions of this section.
    ``(k)(1) The consideration by the Federal Communications Commission 
of any application for a transfer of license, or the acquisition and 
operation of lines, that is associated with an acquisition subject to 
this section shall be governed by the procedures set forth in this 
subsection.
    ``(2)(A) Upon receipt of an application referred to in paragraph 
(1), the Federal Communications Commission may submit to the party or 
parties covered by the application a request for any documents and 
information necessary for consideration of the transfer of license, or 
acquisition and operation of lines, addressed in the application.
    ``(B) The Federal Communications Commission shall submit a request 
under subparagraph (A), if at all, not later than 30 days after receipt 
of the application in question.
    ``(3)(A) A party subject to a request from the Federal 
Communications Commission under paragraph (2) shall submit to the 
Federal Communications Commission the documents and information 
identified in the request.
    ``(B) At the completion of the submission to the Federal 
Communications Commission of documents and information pursuant to a 
request under subparagraph (A), the party submitting such documents and 
information shall certify to the Federal Communications Commission 
whether or not such party has complied substantially with the request.
    ``(4) Whenever consideration of an application referred to in 
paragraph (1) includes one or more requests for documents and 
information under paragraph (2), the Federal Communications Commission 
shall complete the consideration of the application not later than 180 
days after the date on which all parties covered by such requests have 
certified to the Federal Communications Commission under paragraph 
(3)(B) that such parties have complied substantially with such 
requests.
    ``(5)(A) In any case in which the Federal Communications Commission 
does not request under paragraph (2) any documents and information for 
the consideration of an application referred to in paragraph (1), the 
Federal Communications Commission shall approve or deny the transfer of 
license, or the acquisition and operation of lines, covered by the 
application not later than 30 days after the date of the submittal of 
the application to the Federal Communications Commission.
    ``(B) In any case in which the Federal Communications Commission 
requests under paragraph (2) documents and information for the 
consideration of an application referred to in paragraph (1), the 
Federal Communications Commission shall approve or deny the transfer of 
license, or the acquisition and operation of lines, covered by the 
application on the date of the completion of consideration of the 
application under paragraph (4).
    ``(C) If the Federal Communications Commission does not approve or 
deny an application for a transfer of license, or for the acquisition 
and operation of lines, by the date set forth in subparagraph (A) or 
(B), whichever applies, the application shall be deemed approved by the 
Federal Communications Commission as of such date. Approval under this 
subparagraph shall be without conditions.
    ``(6)(A) Any party seeking to challenge the reasonableness of a 
request of the Federal Communications Commission under paragraph (2) 
shall bring an action in the United States District Court of the 
District of Columbia seeking a declaratory judgment or injunctive 
relief with respect to that challenge.
    ``(B) In seeking to challenge the compliance under paragraph (3) of 
a party with a request under paragraph (2), the Federal Communications 
Commission shall bring an action in the United States District Court of 
the District of Columbia seeking a declaratory judgment or injunctive 
relief with respect to that challenge.
    ``(C) The period of an action under this paragraph may not be taken 
into account in determining the passage of time under a deadline under 
this subsection.
    ``(7) No provision of this subsection may be construed to limit or 
modify--
            ``(A) the standards utilized by the Federal Communications 
        Commission under the Communications Act of 1934 (47 U.S.C. 151 
        et seq.) in considering or approving transfers of licenses, or 
        the acquisition and operation of lines, covered by an 
        application referred to in paragraph (1); or
            ``(2) the authority of the Federal Communications 
        Commission under that Act to impose conditions upon the 
        transfer of licenses, or the acquisition and operation of 
        lines, pursuant to such consideration or approval.
    ``(8) Subsection (g)(1) shall not apply with respect to the 
activities of a party under this subsection.''.
    (b) Effective Date.--(1) Except as provided in paragraph (2), the 
amendment made by subsection (a) shall take effect on the date of the 
enactment of this Act.
    (2) Subsection (k) of section 7A of the Clayton Act, as amended by 
subsection (a) of this section, shall take effect 30 days after the 
date of the enactment of this Act, and shall apply with respect to 
applications referred to in such subsection (k) that are submitted to 
the Federal Communications Commission on or after that date.
                                 <all>