[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1797 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1797

    To implement antitrust enforcement enhancements and cooperation 
                              incentives.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 29, 2003

 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 implement antitrust enforcement enhancements and cooperation 
                              incentives.

    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 Criminal Penalty 
Enhancement and Reform Act of 2003''.

 TITLE I--ANTITRUST ENFORCEMENT ENHANCEMENTS AND COOPERATION INCENTIVES

SEC. 101. SUNSET.

    (a) In General.--Except as provided in subsection (b), the 
provisions of sections 101 through 104 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 101 through 104 of this title shall cease to 
have effect, the provisions of sections 101 through 104 of this title 
shall continue in effect.

SEC. 102. DEFINITIONS.

    In this title:
            (1) Antitrust division.--The term ``Antitrust Division'' 
        means the United States Department of Justice Antitrust 
        Division.
            (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 described in section 104(1), 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 
        individual'' 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. 103. 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 leniency 
applicant or cooperating individual satisfies the requirements of this 
subsection with respect to a civil action described in subsection (a) 
if the court in which the civil action is brought determines 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 
                interviews, 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 
        individuals covered by the agreement the cooperation described 
        in paragraphs (1) and (2) and subparagraph (A).
    (c) Timelines.--If the initial contact by the antitrust leniency 
applicant with the Antitrust Division regarding conduct covered by the 
antitrust leniency agreement occurs 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. 104. RIGHTS AND AUTHORITY OF ANTITRUST DIVISION NOT AFFECTED.

    Nothing in this title 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 103(b) from impairing or 
        impeding the investigation or prosecution by the Antitrust 
        Division of conduct covered by the agreement; or
            (2) create any right to challenge any decision by the 
        Antitrust Division with respect to an antitrust leniency 
        agreement.

SEC. 105. 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''.
    (d) Sentencing Guideline for Antitrust Offenses.--The Guidelines 
Manual promulgated by the Sentencing Commission pursuant to section 
994(a) of title 28, United States Code, is amended as follows:
            (1) Section 2R1.1(a) is amended by striking ``10'' and 
        inserting ``14''.
            (2) The volume of commerce table in section 2R1.1(b)(2) is 
        amended to read as follows:
            ``(2) If the volume of commerce attributable to the 
        defendant was more than $5,000,000, adjust the offense level as 
        follows:

``Volume of                                               Adjustment to
Commerce (Apply the Greatest):                           Offense Level:
    More than $5,000,000..........................               add 1 
    More than $10,000,000.........................               add 2 
    More than $20,000,000.........................               add 4 
    More than $40,000,000.........................               add 6 
    More than $80,000,000.........................               add 8 
    More than $160,000,000........................              add 10 
    More than $320,000,000........................              add 12 
    More than $640,000,000........................              add 14 
    More than $1,000,000,000......................           add 16.''.
            (3) Section 2R1.1(c)(1) is amended by striking ``$20,000'' 
        and inserting ``$50,000''.

                      TITLE II--TUNNEY ACT REFORM

SEC. 201. 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 publication 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.''; 
        and
            (2) in subsection (e)--
                    (A) in the matter before paragraph (1), by--
                            (i) inserting ``independently'' after 
                        ``shall'';
                            (ii) striking ``court may'' and inserting 
                        ``court shall''; and
                            (iii) inserting ``(1)'' before ``Before''; 
                        and
                    (B) striking paragraphs (1) and (2) and inserting 
                the following:
            ``(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 
        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) The Court shall not enter any consent judgment proposed by 
the United States under this section unless it finds that there is 
reasonable belief, based on substantial evidence and reasoned analysis, 
to support the United States' conclusion that the consent judgment is 
in the public interest. In making its determination as to whether entry 
of the consent judgment is in the public interest, the Court shall not 
be limited to examining only the factors set forth in this subsection, 
but may consider any other factor relevant to the competitive impact of 
the judgment.''.
                                 <all>