[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4013 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 4013

 To prohibit certain transactions during the coronavirus disease 2019 
                          (COVID-19) pandemic.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 18, 2020

Ms. Warren (for herself and Mr. Sanders) introduced the following bill; 
    which was read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
 To prohibit certain transactions during the coronavirus disease 2019 
                          (COVID-19) pandemic.

    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 ``Pandemic Anti-Monopoly Act''.

SEC. 2. MORATORIUM ON CERTAIN MERGERS AND ACQUISITIONS.

    (a) In General.--Except as provided in subsection (b), during the 
period beginning on the date of enactment of this Act and ending on the 
date on which the Federal Trade Commission votes unanimously under 
subsection (c), the following transactions are prohibited:
            (1) Acquisitions by firms with over $100,000,000 in 
        revenue.
            (2) Acquisitions by financial institutions or equity funds 
        with over $100,000,000 in capitalization.
            (3) Acquisitions by firms that are registered investment 
        advisers under section 203 of the Investment Advisers Act of 
        1940 (15 U.S.C. 80b-3) or by firms that are majority-owned by a 
        firm that is a registered investment adviser under that 
        section.
            (4) Acquisitions involving firms with exclusive patent 
        pertaining to coronavirus disease 2019 (COVID-19) pandemic-
        related production, manufacturing, distribution, or 
        infrastructure, medical supplies, equipment, facilities, or 
        services, and drug research, development, production, supply, 
        reserves, or distribution.
            (5) Any other acquisition required to be reported under 
        section 7A of the Clayton Act (15 U.S.C. 18a).
            (6) Does not include an acquisition that is a transaction 
        described in paragraph (1), (2), (3), (4), (5), (9), or (10) of 
        section 7A(c) of the Clayton Act (15 U.S.C. 18a(c)).
    (b) Waiver.--
            (1) In general.--Firms participating in any transaction 
        described in subsection (a) may petition the Federal Trade 
        Commission for a waiver by presenting clear and convincing 
        evidence that the transaction will advance critical national 
        security, economic, or public health interests during the 
        emergency.
            (2) Failing firm.--The acquisition of a failing firm shall 
        be considered to advance critical economic interests and shall 
        be deemed to meet the criteria for a waiver under paragraph 
        (1). A firm shall be deemed failing if the Commission concludes 
        that--
                    (A) the firm would be unable to meet the financial 
                obligations of the firm in the near future, having 
                established that the resources of the firm are so 
                depleted and the prospect of rehabilitation so remote 
                that the firm faces the grave probability of a business 
                failure;
                    (B) the probability of the firm successfully 
                reorganizing under chapter 11 of title 11, United 
                States Code, is dim or nonexistent; and
                    (C) the firm has demonstrated that the firm made 
                good faith efforts to elicit reasonable alternative 
                offers that would keep assets of the firm in the market 
                and pose a less severe danger to competition than does 
                the proposed acquisition.
            (3) Vote.--The Federal Trade Commission, by unanimous 
        Commission vote and with the written concurrence of the 
        Attorney General, the Secretary of Defense, the Secretary of 
        Homeland Security, the Secretary of Labor, the Secretary of 
        Health and Human Services, and the Administrator of the Small 
        Business Administration may grant a petition under paragraph 
        (1) if the Commission determines that the transaction will 
        advance critical national security, economic, or public health 
        interests during the emergency.
            (4) Explanation.--Upon granting a petition under this 
        subsection, the Federal Trade Commission shall publish in the 
        Federal Register and on the website of the Commission the 
        rationale for granting the petition.
    (c) Termination of Moratorium.--
            (1) In general.--The prohibition in subsection (a) shall 
        not apply only if the Federal Trade Commission unanimously 
        determines, with the written consent of the Attorney General, 
        the Secretary of Labor, and the Administrator of the Small 
        Business Administration, that the prohibition should no longer 
        apply.
            (2) Initial determination.--The Federal Trade Commission 
        may only hold a vote under paragraph (1) after--
                    (A) the national emergency under the National 
                Emergencies Act (50 U.S.C. 1601 et seq.) with respect 
                to the coronavirus disease 2019 (COVID-19) has 
                terminated;
                    (B) each State of the United States, the District 
                of Columbia, any territory of the United States, Puerto 
                Rico, Guam, American Samoa, the Virgin Islands, and the 
                Northern Mariana Islands have reopened their economies;
                    (C) the 100-day period ending on the later of the 
                date on which subparagraph (A) or (B) has been 
                satisfied expires; and
                    (D) the Commission determines that small businesses 
                and workers are no longer under severe financial 
                distress.
    (d) Tolling.--During the period beginning on the date of enactment 
of this Act and ending on the date on which the Federal Trade 
Commission votes under subsection (c)(1) to remove the prohibition 
under subsection (a), any waiting period or deadline required under 
section 7A of the Clayton Act (15 U.S.C. 18a) shall be automatically 
tolled.
    (e) Penalties.--Any firm attempting a prohibited transaction under 
this section shall be subject to an order blocking or reversing the 
transaction and a penalty of not less than 10 percent of the revenue of 
the firm for fiscal year 2019.
    (f) Resiliency Rulemaking.--
            (1) In general.--There shall be a legal presumption against 
        a transaction that may pose a risk to the Government's ability 
        to respond to a national emergency, including--
                    (A) a transaction that may reduce, restrict, 
                curtail, or otherwise undermine the ability of the 
                Government to invent, develop, improve, produce, 
                procure, stockpile, or otherwise make available goods 
                and services that are life-saving or otherwise 
                essential to the Government's ability to address the 
                coronavirus disease 2019 (COVID-19) pandemic or other 
                potential public health, safety, or other emergencies;
                    (B) a transaction that may reduce, limit, curtail, 
                or otherwise create a disincentive for research, 
                development, or production of goods or services 
                described in subparagraph (A); and
                    (C) a transaction by a firm under contract within 
                the last 5 years with the Federal Government regarding 
                any goods or services described in subparagraph (A).
            (2) Burden.--If a firm seeks to complete a transaction 
        described in paragraph (1), that firm shall have the burden of 
        showing by clear and convincing evidence that the transaction 
        does not pose a risk to the Government's ability to respond to 
        a national emergency.
            (3) Rulemaking.--Not later than 1 year after the date of 
        enactment of this Act, the Federal Trade Commission shall 
        promulgate regulations to further define--
                    (A) transactions that fall under paragraph (1)(A);
                    (B) transactions that fall under paragraph (1)(B);
                    (C) companies that fall under paragraph (1)(C); and
                    (D) specific goods and services that are life-
                saving or otherwise essential to the Government's 
                ability to address the coronavirus disease 2019 (COVID-
                19) pandemic or other potential public health, safety, 
                or other emergencies.
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