[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3426 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 3426

 To deter anticompetitive exclusionary conduct that harms competition 
and consumers, to enhance the ability of the Department of Justice and 
  the Federal Trade Commission to enforce the antitrust laws, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 10, 2020

Ms. Klobuchar (for herself, Mr. Blumenthal, and Mr. Booker) introduced 
the following bill; which was read twice and referred to the Committee 
                            on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To deter anticompetitive exclusionary conduct that harms competition 
and consumers, to enhance the ability of the Department of Justice and 
  the Federal Trade Commission to enforce the antitrust laws, 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 ``Anticompetitive Exclusionary Conduct 
Prevention Act of 2020''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) competitive markets, in which multiple firms compete to 
        buy and sell products and services, are critical to ensuring 
        economic 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 and job creation;
            (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) when dominant sellers exercise market power, they harm 
        buyers by overcharging them, reducing product or service 
        quality, limiting their choices, and impairing innovation;
            (7) when dominant buyers exercise market power, they harm 
        suppliers by underpaying them, limiting their business 
        opportunities, and impairing innovation;
            (8) when dominant employers exercise market power, they 
        harm workers by paying them low wages, reducing their benefits, 
        and limiting their future employment opportunities;
            (9) nascent or potential rivals can be an important source 
        of competitive discipline for dominant firms;
            (10) antitrust enforcement against anticompetitive 
        exclusionary conduct has been impeded when courts have declined 
        to rigorously examine the facts in favor of inaccurate economic 
        assumptions that are inconsistent with contemporary economic 
        learning, such as presuming that market power is not durable 
        and can be expected to self-correct, that monopolies drive 
        innovation, that above-cost pricing cannot harm competition, 
        and other flawed assumptions; and
            (11) the courts of the United States have improperly 
        implied immunity from the antitrust laws based on Federal 
        regulatory statutes, even limiting the application of statutory 
        antitrust savings clauses passed by Congress.
    (b) Purposes.--The purposes of this Act are to--
            (1) deter exclusionary conduct that harms competition, 
        particularly by dominant firms; and
            (2) enhance antitrust enforcement by the Department of 
        Justice, the Federal Trade Commission, the State enforcement 
        agencies, and private parties.

SEC. 3. DEFINITION.

    In this Act, the term ``antitrust laws''--
            (1) has the meaning given the term in subsection (a) of 
        section 1 of the Clayton Act (15 U.S.C. 12);
            (2) includes--
                    (A) section 5 of the Federal Trade Commission Act 
                (15 U.S.C. 45) to the extent that such section applies 
                to unfair methods of competition; and
                    (B) this Act and the amendments made by this Act.

SEC. 4. EXCLUSIONARY CONDUCT.

    (a) In General.--The Clayton Act (15 U.S.C. 12 et seq.) is amended 
by inserting after section 26 (15 U.S.C. 26a) the following:

``SEC. 26A. EXCLUSIONARY CONDUCT.

    ``(a) Definitions.--In this section:
            ``(1) Exclusionary conduct.--
                    ``(A) In general.--The term `exclusionary conduct' 
                means conduct that--
                            ``(i) materially disadvantages one or more 
                        actual or potential competitors; or
                            ``(ii) tends to foreclose or limit the 
                        opportunity of one or more actual or potential 
                        competitors to compete.
                    ``(B) Limitations.--
                            ``(i) Applying for or enforcing a patent, 
                        trademark, or copyright, unless such 
                        applications or enforcement actions are 
                        baseless or made in bad faith, shall not alone 
                        constitute exclusionary conduct, but such 
                        actions may be considered as part of a course 
                        of conduct that constitutes exclusionary 
                        conduct.
                            ``(ii) Conduct that is necessary to comply 
                        with Federal or State law shall not alone 
                        constitute exclusionary conduct, but such 
                        actions may be considered as part of a course 
                        of conduct that constitutes exclusionary 
                        conduct.
            ``(2) Market power.--The term `market power' means the 
        ability of a person, or a group of persons acting in concert, 
        to profitably impose transaction terms on counterparties, 
        including terms regarding price, quantity, product or service 
        quality, or other terms affecting the value of consideration 
        exchanged in the transaction, that are more favorable to the 
        person or group of persons than what the person or group of 
        persons could obtain in a competitive market.
    ``(b) Violation.--
            ``(1) In general.--It shall be unlawful for a person, 
        acting alone or in concert with other persons, to engage in 
        exclusionary conduct that presents an appreciable risk of 
        harming competition.
            ``(2) Unfair method of competition.--A violation of 
        paragraph (1) shall constitute an unfair method of competition 
        under section 5 of the Federal Trade Commission Act (15 U.S.C. 
        45).
    ``(c) Presumption.--
            ``(1) In general.--Exclusionary conduct shall be presumed 
        to present an appreciable risk of harming competition and shall 
        be a violation of subsection (b)(1) if the exclusionary conduct 
        is undertaken, with respect to a relevant market, by a person 
        or by a group of more than 1 person acting in concert that--
                    ``(A) has a market share of greater than 50 percent 
                as a seller or a buyer in the relevant market; or
                    ``(B) otherwise has significant market power in the 
                relevant market.
            ``(2) Exception.--The presumption in paragraph (1) shall be 
        rebutted if the defendant establishes, by a preponderance of 
        the evidence, that--
                    ``(A) distinct procompetitive benefits of the 
                exclusionary conduct in the relevant market eliminate 
                the risk of harming competition presented by the 
                exclusionary conduct;
                    ``(B) one or more persons, not including any person 
                participating in or facilitating the exclusionary 
                conduct, have entered or expanded their presence in the 
                market with the effect of eliminating the risk of 
                harming competition posed by the exclusionary conduct; 
                or
                    ``(C) the exclusionary conduct does not present an 
                appreciable risk of harming competition.
    ``(d) Considerations.--If the presumption in subsection (c) does 
not apply, the determination of whether exclusionary conduct presents 
an appreciable risk of harming competition shall be based on the 
totality of the circumstances, which may include consideration of--
            ``(1) the extent to which any distinct procompetitive 
        benefits of the exclusionary conduct substantially eliminate 
        the risk of harming to competition presented by the 
        exclusionary conduct; and
            ``(2) whether one or more persons, not including any person 
        participating in or facilitating the exclusionary conduct, have 
        entered or expanded their presence in the market, substantially 
        eliminating the risk of harming competition presented by the 
        exclusionary conduct.
    ``(e) Limitations.--Although the following circumstances may 
constitute evidence of a violation of subsection (b)(1), such violation 
does not require finding--
            ``(1) that the unilateral conduct of the defendant altered 
        or terminated a prior course of dealing between the defendant 
        and a person subject to the exclusionary conduct;
            ``(2) that the defendant treated persons subject to the 
        exclusionary conduct differently than the defendant treated 
        other persons;
            ``(3) that any price of the defendant for a product or 
        service was below any measure of the costs to the defendant of 
        providing the product or service; or
            ``(4) that the conduct of the defendant makes no economic 
        sense apart from its tendency to reduce competition.
    ``(f) Civil Penalties.--Any person who violates subsection (b)(1) 
shall be liable to the United States for a civil penalty, which may be 
recovered in a civil action brought by the Attorney General of the 
United States, of not more than the greater of--
            ``(1) 15 percent of the total United States revenues of the 
        person for the previous calendar year; or
            ``(2) 30 percent of the United States revenues of the 
        person in any line of commerce affected or targeted by the 
        unlawful conduct during the period of the unlawful conduct.''.
    (b) Federal Trade Commission Act.--
            (1) Civil penalties.--Section 5 of the Federal Trade 
        Commission Act (15 U.S.C. 45) is amended by adding at the end 
        the following:
    ``(o) Civil Penalty for Violation of Section 26A of the Clayton 
Act.--The Commission may commence a civil action in a district court of 
the United States against any person, partnership, or corporation who 
violates subsection (a)(1) respecting an unfair method of competition 
that constitutes a violation of section 26A of the Clayton Act to 
recover a civil penalty, which shall accrue to the United States, in an 
amount not more than the greater of--
            ``(1) 15 percent of the total United States revenues of the 
        person, partnership, or corporation for the previous calendar 
        year; or
            ``(2) 30 percent of the United States revenues of the 
        person, partnership, or corporation in any line of commerce 
        affected or targeted by the unlawful conduct during the period 
        of the unlawful conduct.''.
            (2) Commission litigation authority.--Section 16(a)(2) of 
        the Federal Trade Commission Act (15 U.S.C. 56(a)(2)) is 
        amended--
                    (A) in subparagraph (D), by striking ``or'' after 
                the semicolon;
                    (B) in subparagraph (E)--
                            (i) by moving the margins 2 ems to the 
                        left; and
                            (ii) by inserting ``or'' after the 
                        semicolon; and
                    (C) inserting after subparagraph (E) the following:
                    ``(F) to recover civil penalties under section 5(o) 
                of this Act;''.

SEC. 5. JOINT ENFORCEMENT 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 outlining policies, practices, and 
analytical techniques relating to agency enforcement under section 26A 
of the Clayton Act, as added by section 4 of this Act, including agency 
policies for determining the appropriate amount of a civil penalty to 
be sought under section 26A of the Clayton Act and subsection (o) of 
section 5 of the Federal Trade Commission Act (15 U.S.C. 45), as added 
by section 4 of this Act, with the goal of promoting transparency and 
deterring violations of section 26A of the Clayton Act.
    (b) Penalty Considerations.--In establishing the guidelines 
described in subsection (a) regarding civil penalties, 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) the intent of the person undertaking 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 violations of section 26A 
        of the Clayton Act, including--
                    (A) structural remedies, behavioral conditions, or 
                equitable disgorgement; or
                    (B) other remedies available under section 4, 4A, 
                15, or 16 of the Clayton Act (15 U.S.C. 15, 15a, 25, 
                26) or section 13(b) of the Federal Trade Commission 
                Act (15 U.S.C. 53(b));
            (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.
    (c) Updates.--The Attorney General and the Federal Trade Commission 
shall update the joint guidelines issued under subsection (a), as 
needed to reflect current agency policies and practices, but not less 
frequently than once every 5 years beginning on the date of enactment 
of this Act.
    (d) Public Notice and Comment.--
            (1) Guidelines.--Before issuing guidelines under subsection 
        (a) or subsection (c), the Attorney General and the Federal 
        Trade Commission shall publish proposed guidelines in draft 
        form and provide public notice and opportunity for comment for 
        not less than 60 days after the date on which the guidelines 
        are published.
            (2) Inapplicability of rule making provisions.--The 
        provisions of section 553 of title 5, United States Code, shall 
        not apply to the guidelines issued under paragraph (1).

SEC. 6. MARKET DEFINITION.

    (a) In General.--Establishing liability under the antitrust laws 
does not require the definition of a relevant market, except when the 
definition of a relevant market is required, to establish a presumption 
or to resolve a claim, under a statutory provision that explicitly 
references relevant market, market concentration, or market share.
    (b) Direct Evidence.--If direct evidence is proffered of actual or 
likely harm to competition or an appreciable risk to competition 
sufficient to satisfy the applicable statutory standard, or that the 
effect of an acquisition subject to section 7 of the Clayton Act (15 
U.S.C. 18) may be substantially to lessen competition or tend to create 
a monopoly, neither a court nor the Federal Trade Commission shall 
require definition of a relevant market in order to evaluate the 
evidence, to find liability, or to find that a claim has been stated 
under the antitrust laws.
    (c) Rule of Construction.--Nothing in this section may be construed 
to prevent a court or the Federal Trade Commission from considering 
evidence relating to the definition of proposed relevant markets to 
evaluate the merits of a claim under the antitrust laws.

SEC. 7. LIMITATIONS ON IMPLIED IMMUNITY FROM THE ANTITRUST LAWS.

    (a) In General.--In any action or proceeding to enforce the 
antitrust laws with respect to conduct that is regulated under Federal 
statute, no court or adjudicatory body may find that the Federal 
statute, or any rule or regulation promulgated in accordance with the 
Federal statute, implicitly precludes application of the antitrust laws 
to the conduct unless--
            (1) a Federal agency or department actively regulates the 
        conduct under the Federal statute;
            (2) the Federal statute does not include any provision 
        preserving the rights, claims, or remedies under the applicable 
        antitrust laws or under any area of law that includes the 
        antitrust laws; and
            (3) Federal agency or department rules or regulations, 
        adopted by rulemaking or adjudication, explicitly require or 
        authorize the defendant to undertake the conduct.
    (b) Existing Federal Regulation.--In any action or proceeding 
described in subsection (a), the antitrust laws shall be applied fully 
and without qualification or limitation, and the scope of the antitrust 
laws shall not be defined more narrowly on account of the existence of 
Federal rules, regulations, or regulatory agencies or departments, 
unless application of the antitrust laws is precluded or limited by--
            (1) an explicit exemption from the antitrust laws under a 
        Federal statute; or
            (2) an implied immunity that satisfies the requirements 
        under subsection (a).

SEC. 8. ADDITIONAL REMEDIES; RULES OF CONSTRUCTION.

    (a) Additional Remedies.--The rights and remedies provided under 
this Act are in addition to, not in lieu of, any other rights and 
remedies provided by Federal law, including under section 4, 4A, 15, or 
16 of the Clayton Act (15 U.S.C. 15, 15a, 25, 26) or section 13(b) of 
the Federal Trade Commission Act (15 U.S.C. 53(b)).
    (b) Rules of Construction.--Nothing in this Act may be construed 
to--
            (1) impair or limit the applicability of any of the 
        antitrust laws; and
            (2) prohibit any other remedy provided by Federal law.
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