[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2237 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  1st Session
                                S. 2237

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.


_______________________________________________________________________


                   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.

    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 ``Monopolization Deterrence Act of 
2019''.

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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;''.
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