[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2039 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 2039

         To improve the antitrust laws, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 14, 2021

 Mr. Lee (for himself and Mr. Grassley) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
         To improve 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 ``Tougher Enforcement Against 
Monopolists Act'' or the ``TEAM Act''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
                          TITLE I--ONE AGENCY

Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. Definitions.
Sec. 104. Transfer of antitrust enforcement functions from the Federal 
                            Trade Commission to the Department of 
                            Justice.
Sec. 105. Removal of review authority from Federal Communications 
                            Commission and State entities.
Sec. 106. Technical and conforming amendments.
Sec. 107. Effective date.
                           TITLE II--MERGERS

Sec. 201. Premerger notification filing fees.
Sec. 202. Merger presumptions.
Sec. 203. Merger notification requirements.
                     TITLE III--COMPETITION POLICY

Sec. 301. Competitive impact statement.
Sec. 302. Written explanations of enforcement and non-enforcement 
                            actions.
Sec. 303. Studies.
Sec. 304. Monopsony guidelines.
                   TITLE IV--RESTORING BOARD IMMUNITY

Sec. 401. Short title.
Sec. 402. Statement of findings and purpose.
Sec. 403. Definitions.
Sec. 404. Antitrust immunity.
Sec. 405. Active supervision.
Sec. 406. Judicial review.
             TITLE V--OTHER IMPROVEMENTS TO ANTITRUST LAWS

Sec. 501. Overturning Illinois Brick and Hanover Shoe.
Sec. 502. Limitations on implied immunity from the antitrust laws.
Sec. 503. Prejudgment interest.
Sec. 504. Safe harbor for efforts to facilitate data portability and 
                            interoperability.
Sec. 505. Study of assigning all antitrust cases to certain district 
                            courts of the United States.
Sec. 506. Balancing harm and benefits.
Sec. 507. Actions on behalf of consumers under Sherman Act.
Sec. 508. Civil fines for knowing violations of the antitrust laws.
Sec. 509. Direct evidence of intent to avoid or restrict competition.
Sec. 510. Limit on contracting.
Sec. 511. Prohibiting discrimination in distribution.
Sec. 512. Authorizations of appropriations.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Antitrust laws.--The term ``antitrust laws'' means--
                    (A) the Sherman Act (15 U.S.C. 1 et seq.); and
                    (B) the Clayton Act (15 U.S.C. 12 et seq.).
            (2) Assistant attorney general.--The term ``Assistant 
        Attorney General'' means the Assistant Attorney General for the 
        Antitrust Division of the Department of Justice.
            (3) Executive agency.--The term ``Executive agency'' has 
        the meaning given that term in section 105 of title 5, United 
        States Code.

                          TITLE I--ONE AGENCY

SEC. 101. SHORT TITLE.

    This title may be cited as the ``One Agency Act''.

SEC. 102. FINDINGS.

    Congress finds the following:
            (1) It is the policy of the United States to promote the 
        vigorous, effective, and efficient enforcement of the antitrust 
        laws.
            (2) The overlapping antitrust enforcement jurisdiction of 
        the Department of Justice and the Federal Trade Commission has 
        wasted taxpayer resources, hampered enforcement efforts, and 
        caused uncertainty for businesses and consumers in the United 
        States.
            (3) It is preferable that primary Federal responsibility 
        for enforcing the antitrust laws of the United States be given 
        to a single agency, and the Department of Justice is best 
        suited to do so.

SEC. 103. DEFINITIONS.

    In this title:
            (1) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (2) Effective date.--The term ``effective date'' means the 
        date described in section 107.
            (3) FTC antitrust action.--The term ``FTC antitrust 
        action'' means any litigation or administrative proceeding 
        initiated by the Commission that--
                    (A) is supervised by an FTC Antitrust Unit; or
                    (B) relates to the antitrust laws or section 5 of 
                the Federal Trade Commission Act (15 U.S.C. 45), as in 
                effect on the day before the effective date.
            (4) FTC antitrust assets.--The term ``FTC antitrust 
        assets''--
                    (A) means all electronic or tangible records and 
                files relating to matters supervised, as well as any 
                physical assets or equipment owned and used or 
                retained, by an FTC Antitrust Unit; and
                    (B) does not include any office space or leased 
                facilities or equipment.
            (5) FTC antitrust employee.--The term ``FTC antitrust 
        employee'' means an individual who on the day before the 
        effective date is employed by the Federal Trade Commission and 
        assigned to an FTC Antitrust Unit.
            (6) FTC antitrust function.--The term ``FTC antitrust 
        function'' means a function of the Commission relating to the 
        antitrust laws or unfair methods of competition under section 5 
        of the Federal Trade Commission Act (15 U.S.C. 45), as in 
        effect on the day before the effective date.
            (7) FTC antitrust funding.--The term ``FTC antitrust 
        funding'' means--
                    (A) all amounts appropriated before the effective 
                date by an Act of Congress to the Federal Trade 
                Commission that are designated, by Congress or the 
                Commission, for an FTC Antitrust Unit; and
                    (B) all fees collected by the Federal Trade 
                Commission before the effective date under section 7A 
                of the Clayton Act (15 U.S.C. 18a) and rules issued 
                under that section.
            (8) FTC antitrust unit.--The term ``FTC Antitrust Unit'' 
        means--
                    (A) the Bureau of Competition of the Commission; 
                and
                    (B) each division of the Bureau of Economics of the 
                Commission that is designated to work on FTC antitrust 
                actions.
            (9) Function.--The term ``function'' means any duty, 
        obligation, power, authority, responsibility, right, privilege, 
        activity, or program.
            (10) Transition period.--The term ``transition period'' 
        means the period beginning on the effective date of this title 
        and ending on the later of--
                    (A) the date that is 1 year after the effective 
                date of this title; or
                    (B) the date that is 180 days after the date 
                described in subparagraph (A), which may be extended by 
                the Assistant Attorney General once for an additional 
                180 days, if the Assistant Attorney General determines 
                that a period longer than the period described in 
                subparagraph (A) is necessary to avoid harm to the 
                interests of the United States or the effective 
                enforcement of the antitrust laws.

SEC. 104. TRANSFER OF ANTITRUST ENFORCEMENT FUNCTIONS FROM THE FEDERAL 
              TRADE COMMISSION TO THE DEPARTMENT OF JUSTICE.

    (a) Transfer of Functions.--
            (1) In general.--Except as provided in paragraph (3)(D), 
        there shall be transferred to the Department of Justice all FTC 
        antitrust functions, FTC antitrust employees, FTC antitrust 
        assets, and FTC antitrust funding on the earlier of--
                    (A) the date determined by the Assistant Attorney 
                General under paragraph (2)(B); or
                    (B) the end of the transition period.
            (2) Requirement.--The Assistant Attorney General, taking 
        care to minimize disruption to ongoing enforcement matters and 
        in consultation as necessary with the Attorney General, the 
        Office of Personnel Management, the General Services 
        Administration, and the Chairman of the Commission, shall--
                    (A) take all necessary actions to complete 
                implementation of this title before the end of the 
                transition period; and
                    (B) determine the dates certain, which may not be 
                earlier than the effective date nor later than the end 
                of the transition period, on which the transfers under 
                paragraph (1) shall occur.
            (3) Personnel.--
                    (A) Assignment.--An FTC antitrust employee 
                transferred to the Department of Justice under this 
                title shall be assigned to the Antitrust Division of 
                the Department of Justice.
                    (B) Effect on personnel.--Except as provided in 
                subparagraph (C), the transfer under this title of an 
                FTC antitrust employee shall not cause the employee to 
                be separated or reduced in grade or compensation for 1 
                year after the transfer date.
                    (C) Executive schedule.--Notwithstanding 
                subparagraph (B), the Assistant Attorney General may 
                appoint an FTC antitrust employee in a Senior Executive 
                Service position, as defined in section 3132 of title 
                5, United States Code, to a position within the 
                Antitrust Division rate payable for a position at level 
                15, step 10 of the General Schedule.
                    (D) Voluntary nontransfer of personnel.--
                Notwithstanding paragraph (1), an FTC antitrust 
                employee may, with the consent of the Chairman of the 
                Commission, elect to remain an employee of the 
                Commission assigned to a non-FTC Antitrust Unit.
                    (E) Office space.--Upon request from the Assistant 
                Attorney General, and in consultation as necessary with 
                the General Services Administration, the Commission 
                shall allow the Department of Justice to use any office 
                space or leased facilities previously used by FTC 
                antitrust employees until such time as the Department 
                of Justice may provide its own office space or 
                facilities. After the transfer of FTC antitrust funding 
                to the Department of Justice, the Department of Justice 
                shall compensate the Commission for the costs of the 
                use of such office space or leased facilities.
                    (F) Restructuring.--Notwithstanding any other 
                provision of law, the Assistant Attorney General is 
                authorized to restructure the Antitrust Division before 
                the expiration of the transition period, as the 
                Assistant Attorney General determines is appropriate, 
                to carry out the purposes of this title and accomplish 
                the efficient enforcement of the antitrust laws.
            (4) Antitrust actions.--
                    (A) In general.--As soon as is reasonably 
                practicable during the transition period, all open 
                investigations, litigations, matters, or other 
                proceedings being supervised by an FTC antitrust unit 
                and relating to the antitrust laws or unfair methods of 
                competition under section 5 of the Federal Trade 
                Commission Act (15 U.S.C. 45), as in effect on the day 
                before the effective date, shall be transferred to and 
                assumed by the Department of Justice.
                    (B) Handling of certain administrative 
                proceedings.--Administrative proceedings that were 
                initiated by the Commission, were unresolved as of the 
                first day of the transition period, and relate to 
                enforcement of the antitrust laws or unfair methods of 
                competition under section 5 of the Federal Trade 
                Commission Act (15 U.S.C. 45), as in effect on the day 
                before the effective date, shall be treated in the 
                following manner:
                            (i) Any such proceeding pending before an 
                        administrative law judge shall be dismissed 
                        without prejudice and the matter shall be 
                        referred to the Assistant Attorney General.
                            (ii) For any such proceeding pending on 
                        appeal before the Commission, the 
                        administrative appeal shall cease, the ruling 
                        of the administrative law judge shall be 
                        treated as the final decision of the 
                        Commission, and the Court of Appeals for the 
                        District of Columbia Circuit shall have 
                        jurisdiction over any appeal therefrom.
                    (C) Intervention.--
                            (i) In general.--In any FTC antitrust 
                        action before a court of the United States as 
                        of the first day of the transition period, the 
                        court shall allow the Department of Justice 
                        to--
                                    (I) intervene and assume 
                                representation of the Federal 
                                Government from the Commission; and
                                    (II) amend any complaint originally 
                                brought by the Commission for the 
                                purpose of alleging violations of 
                                statutes other than the Federal Trade 
                                Commission Act as necessary and where 
                                appropriate.
                            (ii) Scheduling order upon request.--Upon 
                        the request of the Commission or the Department 
                        of Justice, and in consultation with all 
                        parties to the matter, the court shall issue an 
                        order making such scheduling adjustments as 
                        necessary to facilitate the transfer of 
                        prosecutorial responsibilities under this 
                        subparagraph.
                    (D) Consent decrees.--At the end of the transition 
                period, the Department of Justice shall have sole 
                authority to enforce violations of, approve 
                modifications to, or rescind any consent decree entered 
                into by the Commission before the effective date that 
                concerns conduct alleged to violate the antitrust laws 
                or unfair methods of competition under section 5 of the 
                Federal Trade Commission Act (15 U.S.C. 45), as in 
                effect on the day before the effective date.
            (5) Authority to conduct investigative studies.--
                    (A) Reports of persons, partnerships, and 
                corporations.--
                            (i) In general.--The Department of Justice 
                        may require, by general or special orders, 
                        persons, partnerships, and corporations, 
                        engaged in or whose business affects commerce 
                        to file with the Department in such form as the 
                        Department may prescribe annual or special 
                        reports or answers in writing to specific 
                        questions, furnishing to the Department such 
                        information as the Department may require as to 
                        the organization, business, conduct, practices, 
                        management, and relation to other corporations, 
                        partnerships, and individuals of the respective 
                        persons, partnerships, and corporations filing 
                        such reports or answers in writing.
                            (ii) Oath.--Reports and answers required 
                        under clause (i) shall--
                                    (I) be made under oath or otherwise 
                                as the Department may prescribe;
                                    (II) pertain solely to competition 
                                or the application of the antitrust 
                                laws; and
                                    (III) be filed with the Department 
                                within such reasonable period as the 
                                Department may prescribe, unless 
                                additional time be granted in any case 
                                by the Department.
                    (B) Publication of information or reports.--
                            (i) In general.--Except as provided in 
                        clause (ii), the Department of Justice--
                                    (I) shall make public from time to 
                                time such portions of the information 
                                obtained by the Department under this 
                                paragraph as are in the public 
                                interest;
                                    (II) may make annual and special 
                                reports to Congress that include 
                                recommendations for additional 
                                legislation; and
                                    (III) shall provide for the 
                                publication of reports and decisions of 
                                the Department in such form and manner 
                                as may be best adapted for public 
                                information and use.
                            (ii) Prohibition against publication of 
                        privileged or confidential information.--
                                    (I) In general.--Except as provided 
                                in subclause (II), the Department of 
                                Justice shall not make public any trade 
                                secret or any commercial or financial 
                                information that is obtained from any 
                                person and that is privileged or 
                                confidential.
                                    (II) Exception.--The Department may 
                                disclose information described in 
                                subclause (I) to--
                                            (aa) officers and employees 
                                        of appropriate Federal law 
                                        enforcement agencies or to any 
                                        officer or employee of any 
                                        State law enforcement agency 
                                        upon the prior certification of 
                                        an officer of any such Federal 
                                        or State law enforcement agency 
                                        that such information will be 
                                        maintained in confidence and 
                                        will be used only for official 
                                        law enforcement purposes; or
                                            (bb) any officer or 
                                        employee of any foreign law 
                                        enforcement agency under the 
                                        same circumstances that making 
                                        material available to foreign 
                                        law enforcement agencies is 
                                        permitted under section 21(b) 
                                        of the Federal Trade Commission 
                                        Act (15 U.S.C. 57b-2(b)).
            (6) Benefit of antitrust division.--All FTC antitrust 
        assets and FTC antitrust funding transferred under this 
        subsection shall be for the exclusive use and benefit of the 
        Antitrust Division of the Department of Justice.
    (b) Transition Period.--
            (1) In general.--Except as provided in paragraph (2), 
        beginning on the effective date, the Commission may not--
                    (A) hire or assign an employee to an FTC Antitrust 
                Unit;
                    (B) open a new investigation or matter within an 
                FTC Antitrust Unit or relating to antitrust 
                enforcement;
                    (C) without the approval of the Assistant Attorney 
                General, enter into a consent decree, enter into a 
                settlement agreement, or otherwise resolve an FTC 
                antitrust action; or
                    (D) initiate a new FTC antitrust action.
            (2) Enforcement on behalf of the department of justice.--
        Notwithstanding paragraph (1), during the transition period, 
        the Assistant Attorney General may deputize an FTC Antitrust 
        Employee to investigate or prosecute an alleged violation of 
        the antitrust laws on behalf of the Department of Justice 
        before the completion of the transfer of personnel under 
        subsection (a)(3).
            (3) Same rights and obligations.--
                    (A) In general.--Notwithstanding any other 
                provision of law, during the transition period all 
                Department of Justice employees under the supervision 
                of the Assistant Attorney General shall have the same 
                rights and obligations with respect to confidential 
                information submitted to the Commission as FTC 
                antitrust employees on the day before the effective 
                date.
                    (B) Rule of construction.--Nothing in this 
                paragraph may be construed as implying any change to 
                the rights and obligations described in subparagraph 
                (A) as a result of this title.
    (c) Agreements.--The Assistant Attorney General, in consultation 
with the Chairman of the Commission, shall--
            (1) review any agreements between the Commission and any 
        other Federal agency or any foreign law enforcement agency; and
            (2) before the end of the transition period, seek to amend, 
        transfer, or rescind such agreements as necessary and 
        appropriate to carry out this title, endeavoring to complete 
        such amendment, transfer, or rescindment with all due haste.
    (d) Rules.--The Attorney General shall, pursuant to section 7A of 
the Clayton Act (15 U.S.C. 18a) and in accordance with section 553 of 
title 5, United States Code, prescribe or amend any rules as necessary 
to carry out this title.

SEC. 105. REMOVAL OF REVIEW AUTHORITY FROM FEDERAL COMMUNICATIONS 
              COMMISSION AND STATE ENTITIES.

    (a) Definitions.--In this section--
            (1) the term ``covered transaction'' means any acquisition, 
        assignment, or transfer of control of--
                    (A) any license, authorization, or line subject to 
                the jurisdiction of the Communications Act of 1934 (47 
                U.S.C. 151 et seq.); or
                    (B) any authorization, certificate, franchise, or 
                other instrument issued by a State commission or 
                franchising authority; and
            (2) the terms ``State commission'' and ``franchising 
        authority'' have the meanings given those terms in sections 3 
        and 602, respectively, of the Communications Act of 1934 (47 
        U.S.C. 153, 522).
    (b) Review of Communications Transactions.--
            (1) Sole responsibility of department of justice.--
        Notwithstanding any provision of the Communications Act of 1934 
        (47 U.S.C. 151 et seq.) or any law or regulation of a State or 
        political subdivision thereof, the review of the competitive 
        impact of any proposed covered transaction shall be solely the 
        responsibility of the Department of Justice pursuant to the 
        antitrust laws, and neither the Federal Communications 
        Commission nor any State commission or franchising authority 
        shall have any authority to conduct such review.
            (2) Consultation.--In reviewing the competitive impact of a 
        proposed covered transaction, the Attorney General shall 
        solicit and consider the views of the Federal Communications 
        Commission.
    (c) Application of Public Interest Standards.--
            (1) In general.--A determination of the Federal 
        Communications Commission described in paragraph (2) with 
        respect to a proposed covered transaction shall be limited to 
        an assessment of whether the acquirer, assignee, or transferee 
        meets the technical, financial, character, and citizenship 
        qualifications that the Commission has prescribed by rule under 
        the Communications Act of 1934 (47 U.S.C. 151 et seq.) to hold 
        that license, authorization, or line.
            (2) Determinations.--A determination described in this 
        paragraph is a determination pursuant to section 214(a) or 
        310(d) of the Communications Act of 1934 (47 U.S.C. 214(a), 
        310(d)) as to whether a proposed covered transaction would 
        serve the public interest, without regard to whether the 
        determination is phrased as whether the present or future 
        public convenience and necessity require or will require the 
        transaction or whether the public interest, convenience, and 
        necessity will be served by the transaction.

SEC. 106. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Clayton Act.--The Clayton Act (15 U.S.C. 12 et seq.) is 
amended--
            (1) in section 2 (15 U.S.C. 13)--
                    (A) in subsection (a), by striking ``Federal Trade 
                Commission'' and inserting ``Attorney General of the 
                United States''; and
                    (B) in subsection (b), by striking ``Commission'' 
                and inserting ``Attorney General of the United 
                States'';
            (2) in section 5(a) (15 U.S.C. 16(a)), in the second 
        sentence, by striking ``, except that, in any action or 
        proceeding brought under the antitrust laws, collateral 
        estoppel effect shall not be given to any finding made by the 
        Federal Trade Commission under the antitrust laws or under 
        section 5 of the Federal Trade Commission Act which could give 
        rise to a claim for relief under the antitrust laws'';
            (3) in section 7 (15 U.S.C. 18)--
                    (A) in the first undesignated paragraph, by 
                striking ``and no person subject to the jurisdiction of 
                the Federal Trade Commission shall acquire the whole or 
                any part of the assets of another person engaged also 
                in commerce or in any activity affecting commerce''; 
                and
                    (B) in the second undesignated paragraph, by 
                striking ``and no person subject to the jurisdiction of 
                the Federal Trade Commission shall acquire the whole or 
                any part of the assets of one or more persons engaged 
                in commerce or in any activity affecting commerce'';
            (4) in section 7A (15 U.S.C. 18a)--
                    (A) in subsection (b)--
                            (i) in paragraph (1)(A), in the matter 
                        preceding clause (i), by striking ``the Federal 
                        Trade Commission and''; and
                            (ii) in paragraph (2), by striking 
                        ``Federal Trade Commission and the'';
                    (B) in subsection (c)--
                            (i) in paragraph (6), by striking ``the 
                        Federal Trade Commission and''; and
                            (ii) in paragraph (8), by striking ``the 
                        Federal Trade Commission and'';
                    (C) in subsection (d)--
                            (i) in the matter preceding paragraph (1), 
                        by striking ``Federal Trade Commission, with 
                        the concurrence of the Assistant Attorney 
                        General and'' and inserting ``Attorney General 
                        of the United States''; and
                            (ii) in paragraph (1), by striking ``the 
                        Federal Trade Commission and'';
                    (D) in subsection (e)--
                            (i) in paragraph (1)--
                                    (I) in subparagraph (A), by 
                                striking ``Federal Trade Commission or 
                                the''; and
                                    (II) in subparagraph (B), by 
                                striking ``and the Federal Trade 
                                Commission shall each'' and inserting 
                                ``shall''; and
                            (ii) in paragraph (2)--
                                    (I) by striking ``Federal Trade 
                                Commission or the'';
                                    (II) by striking ``its or''';
                                    (III) by striking ``the Federal 
                                Trade Commission or'' each place the 
                                term appears; and
                                    (IV) by striking ``, as the case 
                                may be,'';
                    (E) in subsection (f)--
                            (i) by striking ``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''; and
                            (ii) by striking ``the Federal Trade 
                        Commission or'';
                    (F) in subsection (g)(2), in the matter following 
                subparagraph (C), by striking ``the Federal Trade 
                Commission or'';
                    (G) in subsection (h), by striking ``or the Federal 
                Trade Commission'';
                    (H) in subsection (i)--
                            (i) in paragraph (1), by striking ``the 
                        Federal Trade Commission or'' each place the 
                        term appears; and
                            (ii) in paragraph (2)--
                    (I) by striking ``or the Federal Trade 
                Commission''; and
                    (J) by striking ``, the Federal Trade Commission 
                Act,''; and
            (5) in section 8(a)(5) (15 U.S.C. 19(a)(5)), in the second 
        sentence, by striking ``Federal Trade Commission'' and 
        inserting ``Attorney General of the United States''.
    (b) Charitable Gift Annuity Antitrust Relief Act of 1995.--Section 
3(1) of the Charitable Gift Annuity Antitrust Relief Act of 1995 (15 
U.S.C. 37a(1)) is amended by striking ``, except that such term 
includes section 5 of the Federal Trade Commission Act (15 U.S.C. 45) 
to the extent that such section 5 applies to unfair methods of 
competition''.
    (c) Pension Funding Equity Act of 2004.--Section 207(b)(1)(A)(i) of 
the Pension Funding Equity Act of 2004 (15 U.S.C. 37b(b)(1)(A)(i)) is 
amended by striking ``, except that such term includes section 5 of the 
Federal Trade Commission Act (15 U.S.C. 45) to the extent such section 
5 applies to unfair methods of competition''.
    (d) Federal Trade Commission Act.--The Federal Trade Commission Act 
(15 U.S.C. 41 et seq.) is amended--
            (1) in section 5 (15 U.S.C. 45)--
                    (A) in subsection (a)--
                            (i) in paragraph (1), by striking ``methods 
                        of competition in or affecting commerce, and 
                        unfair'';
                            (ii) by striking paragraph (3); and
                            (iii) by redesignating paragraph (4) as 
                        paragraph (3);
                    (B) in subsection (b)--
                            (i) in the first sentence, by striking 
                        ``unfair method of competition or''; and
                            (ii) in the fifth sentence--
                                    (I) by striking ``the method of 
                                competition or''; and
                                    (II) by striking ``method of 
                                competition or such'';
                    (C) in subsection (c)--
                            (i) in the first sentence--
                                    (I) by striking ``method of 
                                competition or''; and
                                    (II) by striking ``method of 
                                competition or the''; and
                            (ii) in the third sentence, by striking 
                        ``or to competitors'';
                    (D) by striking subsection (e);
                    (E) in subsection (g), by striking paragraph (4); 
                and
                    (F) in subsection (n), in the first sentence, by 
                striking ``or to competition'';
            (2) in section 6 (15 U.S.C. 46)--
                    (A) by striking subsections (c) through (e) and 
                (i);
                    (B) by redesignating--
                            (i) subsections (f), (g), and (h) as 
                        subsections (c) through (e), respectively; and
                            (ii) subsections (j) through (l) as 
                        subsections (f) through (h), respectively;
                    (C) in subsection (f)(1), as so redesignated, by 
                striking ``other than Federal antitrust laws (as 
                defined in section 12(5) of the International Antitrust 
                Enforcement Assistance Act of 1994 (15 U.S.C. 
                6211(5))),''; and
                    (D) in subsection (h)(2), as so redesignated, in 
                the matter preceding subparagraph (A), by striking ``or 
                competition'';
            (3) by repealing section 7 (15 U.S.C. 47);
            (4) in section 11 (15 U.S.C. 51), by striking ``antitrust 
        Acts or the'' each place the term appears;
            (5) in section 18 (15 U.S.C. 57a(a)(2)), by striking the 
        second sentence;
            (6) in section 20 (15 U.S.C. 57b-1)--
                    (A) in subsection (a)--
                            (i) in paragraph (2), by striking ``or in 
                        any antitrust violations'';
                            (ii) in paragraph (3), by striking ``or any 
                        provisions relating to antitrust violations'';
                            (iii) in paragraph (7), by striking ``or 
                        any antitrust violation''; and
                            (iv) by striking paragraph (8);
                    (B) in subsection (c)(1), by striking ``or to 
                antitrust violations,''; and
                    (C) in subsection (j)(1), by striking ``, any 
                proceeding under section 11(b) of the Clayton Act (15 
                U.S.C. 21(b)),'';
            (7) in section 21(b)(6) (15 U.S.C. 57b-2(b)(6)), in the 
        matter following subparagraph (D), by striking ``paragraphs (5) 
        and (7)'' and inserting ``paragraphs (4) and (6)''; and
            (8) in section 21A (15 U.S.C. 57b-2a)--
                    (A) by striking subsection (f);
                    (B) by redesignating subsection (g) as subsection 
                (f);
                    (C) in subsection (f), as so redesignated, by 
                striking ``subsection (g)'' each place the term appears 
                and inserting ``subsection (f)''; and
                    (D) in section 24 (15 U.S.C. 57b-5(a)), by striking 
                ``for any conduct which, because of the provisions of 
                the Act entitled `An Act to authorize association of 
                producers of agricultural products', approved February 
                18, 1922 (7 U.S.C. 291 et seq., commonly known as the 
                Capper-Volstead Act), is not a violation of any of the 
                antitrust Acts or this Act''.
    (e) Webb-Pomerene Act.--The Webb-Pomerene Act (15 U.S.C. 61 et 
seq.) is amended--
            (1) by repealing section 4 (15 U.S.C. 64); and
            (2) in section 5--
                    (A) in the first undesignated paragraph--
                            (i) in the first sentence, by striking 
                        ``Federal Trade Commission'' and inserting 
                        ``Attorney General of the United States''; and
                            (ii) in the second sentence, by striking 
                        ``commission'' each place the term appears and 
                        inserting ``Attorney General of the United 
                        States'';
                    (B) in the second undesignated paragraph--
                            (i) in the first sentence, by striking 
                        ``Federal Trade Commission'' and inserting 
                        ``Attorney General of the United States''; and
                            (ii) by striking the third sentence; and
                    (C) by striking the third undesignated paragraph.
    (f) Wool Products Labeling Act of 1939.--The Wool Products Labeling 
Act of 1939 (15 U.S.C. 68 et seq.) is amended--
            (1) by striking ``an unfair method of competition, and'' 
        each place the term appears; and
            (2) in section 68g(b), by striking ``an unfair method of 
        competition and''.
    (g) Fur Products Labeling Act.--The Fur Products Labeling Act (15 
U.S.C. 69 et seq.) is amended by striking ``an unfair method of 
competition, and'' each place the term appears.
    (h) Textile Fiber Products Identification Act.--The Textile Fiber 
Products Identification Act (15 U.S.C. 70 et seq.) is amended--
            (1) by striking ``an unfair method of competition, and'' 
        each place the term appears; and
            (2) in section 3 (15 U.S.C. 70a), by striking ``an unfair 
        method of competition and'' each place the term appears.
    (i) Antitrust Civil Process Act.--Section 4(d) of the Antitrust 
Civil Process Act (15 U.S.C. 1313(d)) is amended--
            (1) in paragraph (1), by striking ``(1) Whoever'' and 
        inserting ``Whoever''; and
            (2) by striking paragraph (2).
    (j) International Antitrust Enforcement Assistance Act of 1994.--
The International Antitrust Enforcement Assistance Act of 1994 (15 
U.S.C. 6201 et seq.) is amended--
            (1) in section 2 (15 U.S.C. 6201), in the matter preceding 
        paragraph (1), by striking ``and the Federal Trade 
        Commission'';
            (2) in section 3(b) (15 U.S.C. 6202(b)), by striking ``and 
        the Commission may, using their respective authority to 
        investigate possible violations of the Federal antitrust 
        laws,'' and inserting ``may'';
            (3) in section 5(1) (15 U.S.C. 6204(1)), by striking ``or 
        the Commission'' each place the term appears;
            (4) in section 6 (15 U.S.C. 6205)--
                    (A) by striking ``or the Commission''; and
                    (B) by striking ``6(f)'' and inserting ``6(c)'';
            (5) in section 7 (15 U.S.C. 6206)--
                    (A) by striking ``, with the concurrence of the 
                Commission,'' each place the term appears; and
                    (B) in subsection (c)(2)(B), by striking ``and the 
                Commission'';
            (6) in section 8 (15 U.S.C. 6207)--
                    (A) by striking ``Neither the Attorney General nor 
                the Commission may'' each place the term appears and 
                inserting ``The Attorney General may not'';
                    (B) in subsection (a), by striking ``or the 
                Commission, as the case may be,'';
                    (C) in subsection (b), by striking ``or the 
                Commission''; and
                    (D) in subsection (c)--
                            (i) by striking ``or the Commission''; and
                            (ii) by striking ``or the Commission, as 
                        the case may be,'';
            (7) in section 10 (15 U.S.C. 6209)--
                    (A) in subsection (a)--
                            (i) by striking ``, the Commission,''; and
                            (ii) by striking ``(a) In General.--The'' 
                        and inserting ``The''; and
                    (B) by striking subsection (b);
            (8) in section 12 (15 U.S.C. 6211)--
                    (A) in paragraph (2)--
                            (i) in the matter preceding subparagraph 
                        (A)--
                                    (I) by striking ``and the 
                                Commission jointly determine'' and 
                                inserting ``determines'';
                                    (II) by striking ``jointly''; and
                                    (III) by striking ``and the 
                                Commission'';
                            (ii) in subparagraph (A)--
                                    (I) by striking ``and the 
                                Commission'' each place the term 
                                appears; and
                                    (II) by striking ``provide'' and 
                                inserting ``provides'';
                            (iii) in subparagraph (E)(ii), in the 
                        matter preceding subclause (I), by striking 
                        ``or the Commission, as the case may be,'';
                            (iv) in subparagraph (F)--
                                    (I) by striking ``or the 
                                Commission''; and
                                    (II) by striking ``or the 
                                Commission, respectively,''; and
                            (v) in subparagraph (H)--
                                    (I) in clause (i)--
                                            (aa) by striking ``or the 
                                        Commission''; and
                                            (bb) by striking ``or the 
                                        Commission, respectively,''; 
                                        and
                                    (II) in clause (ii), by striking 
                                ``or the Commission'' each place the 
                                term appears;
                    (B) by striking paragraph (4);
                    (C) by redesignating paragraphs (5) through (9) as 
                paragraphs (4) through (8), respectively; and
                    (D) in paragraph (4), as so redesignated, by 
                striking ``but also includes section 5 of the Federal 
                Trade Commission Act (15 U.S.C. 45) to the extent that 
                such section 5 applies to unfair methods of 
                competition''; and
            (9) in section 13 (15 U.S.C. 6212)--
                    (A) by striking ``and the Commission are'' and 
                inserting ``is''; and
                    (B) by striking ``or the Commission, 
                respectively,''.
    (k) Medicare Prescription Drug, Improvement, and Modernization Act 
of 2003.--Subtitle B of title XI of the Medicare Prescription Drug, 
Improvement, and Modernization Act of 2003 (Public Law 108-173; 117 
Stat. 2461) is amended--
            (1) in the subtitle heading, by striking ``Federal Trade 
        Commission'' and inserting ``Antitrust'';
            (2) in section 1111 (21 U.S.C. 355 note)--
                    (A) by striking paragraph (8); and
                    (B) by redesignating paragraphs (9) through (12) as 
                paragraphs (8) through (11), respectively;
            (3) in section 1112(c) (21 U.S.C. 355 note), by striking 
        ``and the Commission'' each place the term appears;
            (4) in section 1113 (21 U.S.C. 355 note), by striking ``and 
        the Commission'';
            (5) in section 1114 (21 U.S.C. 355 note), by striking ``or 
        the Commission'';
            (6) in section 1115 (21 U.S.C. 355 note)--
                    (A) in subsection (a), by striking ``, or brought 
                by the Commission in accordance with the procedures 
                established in section 16(a)(1) of the Federal Trade 
                Commission Act (15 U.S.C. 56(a))''; and
                    (B) in subsection (b), by striking ``or the 
                Commission'';
            (7) in section 1116 (21 U.S.C. 355 note), in the matter 
        preceding paragraph (1), by striking ``Commission, with the 
        concurrence of the Assistant Attorney General'' and inserting 
        ``Attorney General''; and
            (8) in section 1117 (21 U.S.C. 355 note), by striking ``or 
        the Commission'' each place the term appears.
    (l) Other Laws.--For any other provision of law requiring the 
Assistant Attorney General or the Attorney General to consult with or 
seek the concurrence of the Commission or the Chairman of the 
Commission, where such requirement relates to the antitrust laws or 
unfair methods of competition under section 5 of the Federal Trade 
Commission Act (15 U.S.C. 45), as in effect on the day before the 
effective date, that requirement shall be waived.

SEC. 107. EFFECTIVE DATE.

    Except where explicitly provided otherwise, this title and the 
amendments made by this title shall take effect on the start of the 
first fiscal year that is at least 90 days after the date of enactment 
of this title.

                           TITLE II--MERGERS

SEC. 201. PREMERGER NOTIFICATION FILING FEES.

    Section 605 of Public Law 101-162 (15 U.S.C. 18a note) is amended--
            (1) in subsection (b)--
                    (A) in paragraph (1)--
                            (i) by striking ``$45,000'' and inserting 
                        ``$30,000'';
                            (ii) by striking ``$100,000,000'' and 
                        inserting ``$161,500,000'';
                            (iii) by striking ``2004'' and inserting 
                        ``2022''; and
                            (iv) by striking ``2003'' and inserting 
                        ``2021'';
                    (B) in paragraph (2)--
                            (i) by striking ``$125,000'' and inserting 
                        ``$100,000'';
                            (ii) by striking ``$100,000,000'' and 
                        inserting ``$161,500,000'';
                            (iii) by striking ``but less'' and 
                        inserting ``but is less''; and
                            (iv) by striking ``and'' at the end;
                    (C) in paragraph (3)--
                            (i) by striking ``$280,000'' and inserting 
                        ``$250,000''; and
                            (ii) by striking the period at the end and 
                        inserting ``but is less than $1,000,000,000 (as 
                        so adjusted and published);''; and
                    (D) by adding at the end the following:
            ``(4) $400,000 if the aggregate total amount determined 
        under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) 
        is not less than $1,000,000,000 (as so adjusted and published) 
        but is less than $2,000,000,000 (as so adjusted and published);
            ``(5) $800,000 if the aggregate total amount determined 
        under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) 
        is not less than $2,000,000,000 (as so adjusted and published) 
        but is less than $5,000,000,000 (as so adjusted and published); 
        and
            ``(6) $1,250,000 if the aggregate total amount determined 
        under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) 
        is not less than $5,000,000,000 (as so adjusted and 
        published).''; and
            (2) by adding at the end the following:
    ``(c)(1) For each fiscal year commencing after September 30, 2022, 
the filing fees in this section shall be increased each year by an 
amount equal to the percentage increase, if any, in the Gross National 
Product of the United States, as determined by the Department of Labor 
or its successor, for the year then ended over the level so established 
for the year ending September 30, 2021.
    ``(2) As soon as practicable, but not later than January 31 of each 
year, the Attorney General shall publish the adjusted amounts required 
by paragraph (1).
    ``(3) The Attorney General shall not adjust amounts required by 
paragraph (1) if the percentage increase described in paragraph (1) is 
less than 1 percent.
    ``(4) An amount adjusted under this section shall be rounded to the 
nearest multiple of $5,000.''.

SEC. 202. MERGER PRESUMPTIONS.

    Section 7 of the Clayton Act (15 U.S.C. 18), as amended by section 
106 of this Act, is amended--
            (1) by striking all that proceeds ``person engaged in 
        commerce'' and inserting the following:

``SEC. 7. ACQUISITION BY ONE CORPORATION OF STOCK OF ANOTHER.

    ``(a) In General.--No'';
            (2) by striking ``No person shall acquire,'' and inserting 
        the following:
    ``(b) Acquisition of Persons Engaged in Commerce.--No person shall 
acquire'';
            (3) by striking ``This section shall not apply'' and 
        inserting the following:
    ``(d) Not Lessening Competition.--This section shall not apply'';
            (4) by striking ``Nor shall anything herein'' and inserting 
        the following:
    ``(e) Common Carriers.--Nor shall anything herein'';
            (5) by striking ``Nothing contained in this section shall 
        be held'' and inserting the following:
    ``(f) Hold Harmless.--Nothing contained in this section shall be 
held'';
            (6) by striking ``Nothing contained in this section shall 
        apply to transactions'' and inserting the following:
    ``(g) Certain Transactions.--Nothing contained in this section 
shall apply to transactions''; and
            (7) by inserting after subsection (b), as so designated by 
        this section, the following:
    ``(c) Actions by United States.--
            ``(1) In general.--The United States may initiate a 
        proceeding to enjoin a transaction prohibited by this section.
            ``(2) Rebuttable presumptions.--
                    ``(A) In general.--In a proceeding initiated by the 
                United States to enjoin a transaction prohibited by 
                this section, it shall be presumed that the effect of a 
                transaction may be substantially to lessen competition, 
                or to tend to create a monopoly, if--
                            ``(i) the United States shows by a 
                        preponderance of the evidence that, as a result 
                        of the transaction, the combined firm would be 
                        able meaningfully to increase prices or reduce 
                        output, innovation, or quality in a market; or
                            ``(ii)(I) the transaction would combine 
                        persons that compete, would compete, or would 
                        attempt to compete against each other, absent 
                        the transaction; and
                            ``(II) the combined firm would have a post-
                        transaction share of the market that--
                                    ``(aa) is greater than 33 percent; 
                                or
                                    ``(bb) if the acquiring person is 
                                owned or controlled by a foreign 
                                government, is greater than 5 percent.
                    ``(B) Rebuttal.--A defendant may rebut a 
                presumption under clause (i) or (ii) of subparagraph 
                (A) only if the defendant demonstrates by a 
                preponderance of the evidence that--
                            ``(i) the combined parties post-transaction 
                        would not be able to exercise market power; or
                            ``(ii) the anticompetitive effects of the 
                        transaction--
                                    ``(I) are insubstantial; or
                                    ``(II) are clearly outweighed by 
                                the procompetitive benefits of the 
                                transaction in the relevant market.
                    ``(C) Rule of construction.--The presumptions under 
                clauses (i) and (ii) of subparagraph (A) shall not 
                limit any other presumption courts have created or used 
                or may create or use in resolving cases under this 
                section.
            ``(3) Irrebuttable presumption.--In a proceeding initiated 
        by the United States to enjoin a transaction prohibited by this 
        section, except to the extent the transaction is necessary to 
        prevent serious harm to the national economy, the effect of a 
        transaction shall be deemed to substantially to lessen 
        competition, or to tend to create a monopoly, if--
                    ``(A) the transaction would combine persons that 
                compete, would compete, or would attempt to compete 
                against each other absent the transaction; and
                    ``(B) the combined firm would have a post-
                transaction share of the market that is greater than 66 
                percent.''.

SEC. 203. MERGER NOTIFICATION REQUIREMENTS.

    (a) In General.--Section 7A(a)(2) of the Clayton Act (15 U.S.C. 
18a(a)(2)) is amended--
            (1) by redesignating subclause (III) of subparagraph 
        (B)(ii) as item (bb);
            (2) by striking ``(ii)(I) any voting'' and all that follows 
        through ``(II) any voting securities or assets of a person not 
        engaged in manufacturing'' and inserting ``(II)(aa) any voting 
        securities or assets of a person'';
            (3) by striking ``(B)(i) in excess'' and inserting 
        ``(ii)(I) in excess'';
            (4) by striking ``(A) in excess'' and inserting ``(i) in 
        excess'';
            (5) by inserting ``(A)'' after ``(2)'';
            (6) by striking ``published) or more.'' and inserting 
        ``published) or more; or''; and
            (7) by inserting after subparagraph (A), as so 
        redesignated, the following:
            ``(B) except with respect to an acquisition made solely for 
        the purpose of investment, the acquiring person--
                    ``(i) has assets in excess of $500,000,000,000; or
                    ``(ii) is owned or controlled by a foreign 
                government.''.
    (b) Repeal of Limited Nexus to Commerce in the United States 
Exception.--
            (1) In general.--The Assistant Attorney General shall amend 
        sections 802.50 and 802.51 of title 16, Code of Federal 
        Regulations, and any other rule or regulation, to repeal any 
        exception from filing a notification under subsection (a) of 
        section 7A of the Clayton Act (15 U.S.C. 18a) or from the 
        waiting period described in subsection (b)(1) of such section 
        with respect to an acquisition on the basis that the 
        acquisition has a limited nexus with the United States.
            (2) Limitation.--The Assistant Attorney General may not 
        promulgate or enforce any rule that excludes from the 
        requirements under section 7A of the Clayton Act (15 U.S.C. 
        18a) any acquisition by or of a person engaged in commerce or 
        in any activity affecting commerce on the basis that the 
        acquisition has a limited nexus with the United States.

                     TITLE III--COMPETITION POLICY

SEC. 301. COMPETITIVE IMPACT STATEMENT.

    (a) Definitions.--In this section:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Office of Information and Regulatory 
        Affairs of the Office of Management and Budget.
            (2) Agency; significant regulatory action.--The terms 
        ``agency'' and ``significant regulatory action'' have the 
        meanings given those terms in section 3 of the Executive Order.
            (3) Executive order.--The term ``Executive Order'' means 
        Executive Order 12866 (5 U.S.C. 601 note; relating to 
        regulatory planning and review).
    (b) Requirement.--In reviewing a significant regulatory action of 
an agency in accordance with the Executive Order, the Administrator 
shall prepare and submit to the agency a competitive impact statement 
that--
            (1) identifies any way in which the significant regulatory 
        action may impact or harm competition in the market to which 
        the significant regulatory action applies; and
            (2) provides guidance on how the significant regulatory 
        could be revised to minimize the impact or harm to competition 
        in that market.

SEC. 302. WRITTEN EXPLANATIONS OF ENFORCEMENT AND NON-ENFORCEMENT 
              ACTIONS.

    (a) In General.--The Assistant Attorney General shall prepare and 
preserve a written explanation of any decision by the Federal 
Government not to file a civil action under the antitrust laws after 
the use of compulsory process by the Federal Government.
    (b) Availability to Congress.--Upon request by any Member of 
Congress, the Assistant Attorney General shall make available an 
unredacted version of a written explanation described in subsection 
(a). A Member of Congress shall not disclose an unredacted version of a 
written explanation received under this subsection.
    (c) Public Availability.--
            (1) In general.--The Assistant Attorney General shall make 
        a written explanation described in subsection (a) publicly 
        available if all subjects of the investigation have 
        acknowledged the existence of the investigation.
            (2) Other availability.--A written explanation described in 
        subsection (a) may be disclosed in accordance with the 
        procedures and limitations under section 552 of title 5, United 
        States Code (commonly known as the ``Freedom of Information 
        Act''), or any other applicable provision of law.
            (3) Redaction.--Information in a written explanation 
        described in subsection (a) that is made publicly available 
        shall be redacted to protect confidential or competitively 
        sensitive information, which may include the identities of the 
        subjects of the investigation when appropriate.

SEC. 303. STUDIES.

    (a) Institutional Investors.--Not later than 2 years after the date 
of enactment of this Act, the Assistant Attorney General, in 
consultation with the Securities and Exchange Commission, shall conduct 
and publish a study, using any compulsory process reasonably necessary, 
relying on public data and information if available and sufficient, and 
incorporating public comment, on--
            (1) the extent to which an institutional investor or 
        related institutional investors have ownership or control 
        interests in competitors in moderately concentrated or 
        concentrated markets;
            (2) the economic impacts of such overlapping ownership or 
        control; and
            (3) the mechanisms by which an institutional investor could 
        affect competition among the companies in which it invests and 
        whether such mechanisms are prevalent.
    (b) Self-Preferencing by Digital Platforms.--Not later than 2 years 
after the date of enactment of this Act, the Assistant Attorney General 
shall conduct and publish a study, using any compulsory process 
reasonably necessary, relying on public data and information if 
available and sufficient, and incorporating public comment, on self-
preferencing by digital platforms.
    (c) Technology Merger Retrospective.--Not later than 2 years after 
the date of enactment of this Act, the Assistant Attorney General 
shall--
            (1) conduct a retrospective analysis of mergers involving 
        technology companies completed during the 15-year period ending 
        on the date of enactment of this Act; and
            (2) publish a report of the findings of the analysis, which 
        shall include an analysis of the adequacy of any enforcement 
        actions or settlement agreements regarding such mergers.

SEC. 304. MONOPSONY GUIDELINES.

    The Assistant Attorney General shall publicly issue guidelines 
regarding how the Antitrust Division of the Department of Justice 
analyzes and approaches a matter involving a monopsony under the 
antitrust laws.

                   TITLE IV--RESTORING BOARD IMMUNITY

SEC. 401. SHORT TITLE.

    This title may be cited as the ``Restoring Board Immunity Act of 
2021'' or the ``RBI Act''.

SEC. 402. STATEMENT OF FINDINGS AND PURPOSE.

    Congress finds the following:
            (1) The prevalence of occupational licensing has increased 
        dramatically in recent decades, in part because private 
        interests have sought licensing in order to limit competition.
            (2) Occupational licensing often limits opportunities for 
        workers, frustrates entrepreneurs seeking to introduce new 
        business models, and raises prices paid by consumers.
            (3) Licensing should be imposed only to combat real, 
        substantial threats to public health, safety, or welfare and 
        only where other less restrictive regulatory alternatives are 
        insufficient to protect consumers and serve the public 
        interest.
            (4) Regulators should consider a range of less restrictive 
        alternatives before enacting an occupational licensing regime, 
        which may include inspections, bonding or insurance 
        requirements, registration, and voluntary certification.
            (5) Voluntary certification provides a particularly 
        significant alternative to licensure, as it allows market 
        participants to signal to consumers the attainment of personal 
        qualifications without limiting entry into the marketplace.
            (6) The failure of State governments to adopt less 
        restrictive alternatives to licensing, and less burdensome 
        requirements in those areas where licensing is deemed 
        necessary, has resulted in significant costs to consumers and 
        the broader economy.
            (7) The United States Supreme Court responded to these 
        concerns in North Carolina Board of Dental Examiners v. FTC, 
        135 S. Ct. 1101 (2015), holding that self-interested licensing 
        boards may be subject to liability under the antitrust laws, 
        but that decision has also created significant uncertainty for 
        the States and their licensing boards.
            (8) Some States have responded to the decision in North 
        Carolina Board of Dental Examiners by establishing a layer of 
        bureaucratic oversight that merely monitors board actions for 
        consistency with State licensing laws. This response is a 
        missed opportunity for reform, as it does not address the 
        specific competition concern raised in North Carolina Board of 
        Dental Examiners or the underlying problems with over-reliance 
        on occupational licensure as a regulatory approach and with 
        overly broad enforcement of licensing laws as a means to 
        regulate commercial activities outside an occupation's scope of 
        practice.
            (9) Legislation is necessary to clarify the requirements of 
        active supervision, both to offer States a clear and certain 
        mechanism to immunize their occupational boards and to make 
        clear that mere bureaucratic oversight to ensure consistency 
        with State licensing laws does not suffice to confer immunity.
            (10) This title is intended to offer States a choice 
        between two alternative routes to achieve immunity for their 
        occupational licensing boards--either establishing a mechanism 
        for meaningful active supervision of licensing boards by State 
        officials or establishing a mechanism for meaningful judicial 
        review of board actions in the State courts.

SEC. 403. DEFINITIONS.

    In this title:
            (1) Certification.--The term ``certification'' means a 
        voluntary program under which--
                    (A) a private organization (in the case of private 
                certification) or the government of a State (in the 
                case of government certification) authorizes an 
                individual who meets certain personal qualifications to 
                use ``certified'' as a designated title with respect to 
                the performance of a lawful occupation; and
                    (B) a non-certified individual may perform the 
                lawful occupation for compensation but may not use the 
                title ``certified''.
            (2) Good faith.--The term ``good faith'', with respect to 
        performance--
                    (A) means diligent performance that is directed 
                towards achieving the policies set forth in this title;
                    (B) does not include performance that is--
                            (i) designed to subvert or evade the 
                        policies set forth in this title; or
                            (ii) carried out in a manner that has the 
                        systematic effect of subverting or evading the 
                        policies set forth in this title; and
                    (C) refers to an objective, rather than subjective, 
                standard.
            (3) Lawful occupation.--The term ``lawful occupation'' 
        means a course of conduct, pursuit, or profession that includes 
        the sale of goods or services that are not themselves illegal 
        to sell irrespective of whether the individual selling the 
        goods or services is subject to occupational licensing laws.
            (4) Least restrictive regulation.--The term ``least 
        restrictive regulation'' means, from least to most restrictive:
                    (A) One or more of the following, each of which 
                shall be considered equally restrictive:
                            (i) Market competition.
                            (ii) Industry or consumer-related ratings 
                        and reviews.
                            (iii) Private certification.
                            (iv) A specific private civil cause of 
                        action to remedy consumer harm.
                            (v) A deceptive trade practice act.
                            (vi) A regulation of the process of 
                        providing the specific goods or services to 
                        consumers.
                            (vii) Inspections.
                            (viii) Bonding or insurance.
                            (ix) Registration.
                            (x) Government certification.
                    (B) Specialty occupational license for medical 
                reimbursement.
                    (C) Occupational license.
            (5) Less restrictive alternatives to occupational 
        licensing.--The term ``less restrictive alternatives to 
        occupational licensing''--
                    (A) means regulations that achieve the public 
                health or safety goals asserted by the government to 
                justify licensing while imposing a less onerous 
                restriction on entry into the marketplace; and
                    (B) includes the alternative forms of regulation 
                described in paragraph (4)(A).
            (6) Member, officer, or employee.--The term ``member, 
        officer, or employee'', with respect to an occupational 
        licensing board, means an individual appointed by a State to 
        the board.
            (7) Occupational license.--The term ``occupational 
        license'' means a nontransferable authorization under law for 
        an individual to perform a lawful occupation for compensation 
        based on meeting personal qualifications established by the 
        State government.
            (8) Occupational licensing board.--The term ``occupational 
        licensing board'' or ``board'' means an entity established 
        under State law--
                    (A) the express purpose of which is to regulate the 
                personal qualifications required to engage in or 
                practice a particular lawful occupation;
                    (B) that has authority conferred by State law to 
                interpret or enforce the occupational licensing laws of 
                the State; and
                    (C) not less than \2/3\ of the members of which are 
                appointed by an elected official of the State.
            (9) Occupational licensing law.--The term ``occupational 
        licensing law''--
                    (A) means a State statute that allows an individual 
                to work in a lawful occupation and use an occupational 
                title; and
                    (B) does not include a business license, facility 
                license, building permit, or zoning and land use 
                regulation, except to the extent that the law regulates 
                an individual's personal qualifications to engage in or 
                practice a lawful occupation.
            (10) Occupational regulation.--The term ``occupational 
        regulation''--
                    (A) means a statute, rule, practice, policy, or 
                other law that substantially burdens an individual's 
                ability to work in a lawful occupation;
                    (B) includes a regulation requiring registration, 
                certification, or an occupational license; and
                    (C) does not include a business license, facility 
                license, building permit, or zoning and land use 
                regulation except to the extent that such a requirement 
                or restriction substantially burdens an individual's 
                ability to work in a lawful occupation.
            (11) Personal qualifications.--The term ``personal 
        qualifications'' means criteria related to an individual's 
        personal background and characteristics, including completion 
        of an approved educational program, satisfactory performance on 
        an examination, work experience, other evidence of attainment 
        of requisite skills or knowledge, moral standing, criminal 
        history, and completion of continuing education.
            (12) Registration.--The term ``registration'' means a 
        requirement that an individual give notice to the government of 
        a State that may include--
                    (A) the individual's name and address;
                    (B) the individual's agent for service of process;
                    (C) the location of the activity to be performed; 
                and
                    (D) a description of the service the individual 
                provides.
            (13) Specialty occupational license for medical 
        reimbursement.--The term ``specialty occupational license for 
        medical reimbursement'' means a nontransferable authorization 
        in law for an individual to qualify for payment or 
        reimbursement from a government agency for the non-exclusive 
        provision of medical services based on meeting personal 
        qualifications established by the State legislature.
            (14) State.--The term ``State'' means--
                    (A) each of the several States; and
                    (B) the District of Columbia.

SEC. 404. ANTITRUST IMMUNITY.

    (a) In General.--Subject to subsection (b), the Sherman Act (15 
U.S.C. 1 et seq.) shall not apply to any action of an occupational 
licensing board of a State, or any action of a member, officer, or 
employee of the board acting in the official capacity of that member, 
officer, or employee, if--
            (1) the requirements under section 405 of this title are 
        satisfied; or
            (2) the requirements under section 406 of this title are 
        satisfied.
    (b) Requirement of Good Faith.--The immunity provided under 
subsection (a) shall not apply to any action of an occupational 
licensing board of a State, or any action of a member, officer, or 
employee of the board acting in the official capacity of that member, 
officer, or employee, unless the State acts in good faith to perform 
the applicable requirements under section 405 or 406 of this title.
    (c) Existing Entities or Procedures.--The fact that a State 
governmental entity or procedure was established before the date of 
enactment of this Act shall not prevent an occupational licensing board 
of the State, or a member, officer, or employee of that board, from 
qualifying for immunity under subsection (a) if the State governmental 
entity or procedure satisfies the applicable requirements under section 
405 or 406 of this title.
    (d) Savings Clause.--The immunity provided under subsection (a) 
shall not apply to an action unrelated to regulating the personal 
qualifications required to engage in or practice a lawful occupation, 
such as rules of an occupational licensing board governing minimum 
prices or residency requirements.

SEC. 405. ACTIVE SUPERVISION.

    (a) In General.--The immunity under section 404(a) shall apply to 
any action of an occupational licensing board of a State, or any action 
of a member, officer, or employee of that board acting in the official 
capacity of that member, officer, or employee, if--
            (1) the actions of the occupational licensing board or 
        member, officer, or employee are authorized by a non-frivolous 
        interpretation of the occupational licensing laws of the State;
            (2) the State adopts a policy of using less restrictive 
        alternatives to occupational licensing to address real, 
        substantial threats to public health, safety, or welfare, in 
        accordance with subsection (b) of this section; and
            (3) the State enacts legislation providing for active 
        supervision of the actions of an occupational licensing board 
        and any member, officer, or employee of such a board, in 
        accordance with subsection (c) of this section.
    (b) Policy.--The State shall adopt a policy providing that--
            (1) occupational licensing laws should be construed and 
        applied to--
                    (A) protect public health, safety, and welfare; and
                    (B) increase economic opportunity, promote 
                competition, and encourage innovation;
            (2) regulators should displace competition through 
        occupational licensing laws only if less restrictive 
        alternatives to occupational licensing will not suffice to 
        protect consumers from real, substantial threats to public 
        health, safety, or welfare; and
            (3) an occupational licensing law should be enforced 
        against an individual only to the extent the individual sells 
        goods or services that are included explicitly in the statute 
        or regulation that defines the occupation's scope of practice.
    (c) Active Supervision.--
            (1) In general.--The legislation enacted under subsection 
        (a)(3) shall satisfy each of the requirements under this 
        subsection.
            (2) Day-to-day supervision.--
                    (A) Establishment of office of supervision of 
                occupational boards.--The State shall establish an 
                Office of Supervision of Occupational Boards (referred 
                to in this subsection as the ``Office'') to review the 
                actions of occupational licensing boards to ensure 
                compliance with the policy adopted under subsection 
                (b).
                    (B) Duties.--The Office shall--
                            (i) review and explicitly approve or reject 
                        in writing any occupational regulation proposed 
                        by an occupational licensing board before the 
                        board may adopt or implement the occupational 
                        regulation;
                            (ii) play a substantial role in the 
                        development of a board's rules and policies to 
                        ensure they benefit consumers and do not serve 
                        the private interests of providers of goods and 
                        services regulated by the board;
                            (iii) disapprove in writing the use of any 
                        board rule or policy relating to an 
                        occupational regulation and terminate any 
                        enforcement action, including any such action 
                        pending on the date of enactment of this Act, 
                        that is inconsistent with the policy adopted 
                        under subsection (b);
                            (iv) exercise control over each board by 
                        reviewing and affirmatively approving in 
                        writing only occupational regulations that are 
                        consistent with the policy adopted under 
                        subsection (b);
                            (v) use the analysis conducted under 
                        paragraph (5) and conduct reasonable 
                        investigations to gain additional information, 
                        including about less restrictive regulatory 
                        approaches, to promote compliance with 
                        subsection (b);
                            (vi)(I) be staffed by not less than 1 
                        attorney; and
                            (II) prohibit attorneys working in the 
                        Office from providing general counsel to any 
                        board; and
                            (vii)(I) approve board actions explicitly 
                        in writing, rather than implicitly; and
                            (II) clearly establish that silence or 
                        inaction does not constitute approval.
            (3) Internal review.--
                    (A) Complaint.--The State shall establish a 
                mechanism under which a person who is a resident of or 
                has a license to operate a business in the State may 
                file a complaint with the Office about an occupational 
                regulation of an occupational licensing board in the 
                State that the person believes is inconsistent with the 
                policy adopted under subsection (b).
                    (B) Office response.--Not later than 90 days after 
                the date on which a person files a complaint under 
                subparagraph (A), the Office shall--
                            (i) investigate the complaint;
                            (ii) identify remedies and instruct the 
                        board to take action, where appropriate; and
                            (iii) respond in writing to the 
                        complainant.
                    (C) Review.--The State shall establish a mechanism 
                for review of a determination made by the Office under 
                subparagraph (B), under which a complainant may appeal 
                the determination to the general division of the trial 
                court of the State if the challenged occupational 
                regulation would substantially burden the complainant's 
                ability to--
                            (i) engage in a lawful occupation; or
                            (ii) employ or contract other individuals 
                        for the performance of a lawful occupation.
            (4) Right to raise defense.--
                    (A) In general.--The State shall authorize an 
                individual to assert as a defense, in any 
                administrative or judicial proceeding to enforce an 
                occupational regulation, that the regulation does not 
                comply with the policy adopted under subsection (b).
                    (B) Procedures.--In a proceeding described in 
                subparagraph (A)--
                            (i) an individual who asserts a defense 
                        under this paragraph has the initial burden of 
                        proof that the occupational regulation being 
                        enforced substantially burdens the individual's 
                        ability to engage in a lawful occupation;
                            (ii) if an individual meets the burden of 
                        proof under clause (i), the State shall be 
                        required to demonstrate by clear and convincing 
                        evidence that the occupational regulation--
                                    (I) advances an important 
                                government interest in protecting 
                                against real, substantial threats to 
                                public health, safety, or welfare; and
                                    (II) is substantially related to 
                                achievement of the important government 
                                interest described in subclause (I), in 
                                light of the availability of less 
                                restrictive alternatives to 
                                occupational licensing; and
                            (iii) in reviewing an alleged violation of 
                        the policy adopted under subsection (b), an 
                        administrative agency or a court--
                                    (I) shall make its own findings of 
                                fact and conclusions of law;
                                    (II) may not rely on a legislative 
                                finding of fact presented in admissible 
                                form to the agency or court; and
                                    (III) may not grant any presumption 
                                to a legislative determination--
                                            (aa) of harm to public 
                                        health, safety, or welfare; or
                                            (bb) that the occupational 
                                        regulation is substantially 
                                        related to achievement of the 
                                        important government interest 
                                        described in clause (ii)(I).
            (5) Periodic advisory review.--
                    (A) In general.--The State shall establish a 
                mechanism for periodic non-binding review of existing 
                occupational regulations, and non-binding review of new 
                proposed occupational regulations, to ensure that the 
                occupational regulations comply with the policy adopted 
                under subsection (b).
                    (B) Scope of review.--The entity conducting the 
                review under subparagraph (A)--
                            (i) shall publish an annual written report 
                        encompassing approximately 20 percent of the 
                        occupations subject to occupational regulations 
                        within the State, such that the entity will 
                        review all occupational regulations within the 
                        State during each 5-year period; and
                            (ii) shall publish a written report 
                        assessing any proposed occupational licensing 
                        law, or other proposed law that would expand 
                        the authority of an occupational licensing 
                        board to impose occupational regulations, 
                        before the proposed law is submitted to a vote 
                        by the State legislature.
                    (C) Requirements for analysis.--In conducting the 
                review required under subparagraph (A), the entity 
                shall--
                            (i) determine whether the law or other 
                        regulation satisfies the policy adopted under 
                        subsection (b) of using the least restrictive 
                        regulation necessary to protect consumers from 
                        real, substantial threats to public health, 
                        safety, or welfare;
                            (ii) evaluate the effects of the law or 
                        other regulation on opportunities for workers, 
                        consumer choices and costs, general 
                        unemployment, market competition, governmental 
                        costs, and other effects;
                            (iii) compare the law or other regulation 
                        to whether and how other States regulate the 
                        applicable occupation; and
                            (iv) if the applicable occupation is 
                        subject to an occupational licensing law, 
                        evaluate--
                                    (I) the feasibility of entering 
                                into reciprocity compacts with one or 
                                more other States to improve worker 
                                mobility and labor market flexibility; 
                                and
                                    (II) the advisability of endorsing 
                                occupational licenses granted by other 
                                States to spouses of active service 
                                military members as if those 
                                occupational licenses were granted by 
                                the State conducting the review.

SEC. 406. JUDICIAL REVIEW.

    (a) In General.--The immunity under section 404(a) shall apply to 
any action of an occupational licensing board of a State, or any action 
of a member, officer, or employee of that board acting in the official 
capacity of that member, officer, or employee, if--
            (1) the actions of the occupational licensing board or 
        member, officer, or employee are authorized by a non-frivolous 
        interpretation of the occupational licensing laws of the State;
            (2) the State adopts a policy of using less restrictive 
        alternatives to occupational licensing to address real, 
        substantial threats to public health, safety, or welfare, in 
        accordance with section 405(b); and
            (3) the State enacts legislation providing for judicial 
        review of occupational licensing laws, in accordance with 
        subsection (b) of this section.
    (b) Judicial Review Legislation.--Legislation enacted by a State 
under subsection (a)(3)--
            (1) shall--
                    (A) prohibit the State and any occupational 
                licensing board from imposing an occupational licensing 
                law unless the State--
                            (i) identifies an important government 
                        interest in protecting against real, 
                        substantial threats to public health, safety, 
                        or welfare; and
                            (ii) demonstrates that the occupational 
                        licensing law is substantially related to 
                        achievement of the important government 
                        interest described in clause (i), in light of 
                        the availability of less restrictive 
                        alternatives to occupational licensing;
                    (B) provide an affirmative defense against 
                enforcement of any occupational licensing law of the 
                State under which the State shall be required to 
                demonstrate that the standard under subparagraph (A) 
                has been met;
                    (C) establish a cause of action under which--
                            (i) a person may bring an action for 
                        injunctive relief against enforcement of an 
                        occupational licensing law of the State;
                            (ii) the plaintiff bears the initial burden 
                        to prove that the challenged occupational 
                        licensing law substantially burdens the 
                        plaintiff's ability to engage in a lawful 
                        occupation; and
                            (iii) once the plaintiff makes the initial 
                        showing under clause (ii), the State is 
                        required to demonstrate that the standard under 
                        subparagraph (A) has been met;
                    (D) provide for an award of reasonable costs and 
                attorney fees to a person who successfully challenges 
                the application of an occupational licensing law of the 
                State by--
                            (i) raising an affirmative defense under 
                        subparagraph (B); or
                            (ii) bringing an action under subparagraph 
                        (C); and
                    (E) provide for independent judicial review of the 
                occupational licensing laws of the State to ensure that 
                the standard set forth in subparagraph (A) has been 
                met; and
            (2) may not authorize a court to--
                    (A) uphold enforcement of an occupational licensing 
                law of the State simply because the court believes the 
                law is rationally related to a legitimate governmental 
                purpose;
                    (B) rely on hypothetical risks to public safety, 
                not substantiated by evidence in the record, to uphold 
                enforcement of an occupational licensing law of the 
                State;
                    (C) defer to factual or legal conclusions of 
                another person or entity, rather than exercising 
                independent review; or
                    (D) rely on a post hoc justification for the action 
                of an occupational licensing board that was not put 
                forward by the board at the time of the challenged 
                action.
    (c) Rule of Construction.--Nothing in subsection (b) shall be 
construed to require legislation enacted by a State under subsection 
(a)(3) to provide a right to recover monetary damages, other than 
reasonable costs and attorney fees as provided under subsection 
(b)(1)(D).

             TITLE V--OTHER IMPROVEMENTS TO ANTITRUST LAWS

SEC. 501. OVERTURNING ILLINOIS BRICK AND HANOVER SHOE.

    Section 4 of the Clayton Act (15 U.S.C. 15) is amended--
            (1) in subsection (a), in the first sentence--
                    (A) by striking ``subsection (b)'' and inserting 
                ``subsections (b) and (c)''; and
                    (B) by inserting ``, including an indirect 
                purchaser,'' after ``business or property'';
            (2) by redesignating subsection (c) as subsection (f); and
            (3) by inserting after subsection (b) the following:
    ``(c)(1) In the case of a person who was injured by a violation of 
the antitrust laws and who resold any property or service that was the 
subject of the violation, the amount of the damages sustained by the 
person shall not include the amount of any overcharge by the defendant 
(or portion thereof) that the person passed on to a subsequent 
purchaser of the property or service that was the subject of the 
violation.
    ``(2) The defendant shall bear the burden of proving the amount of 
any overcharge passed on to a subsequent purchaser.''.

SEC. 502. 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) the 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. 503. PREJUDGMENT INTEREST.

    Section 4(a) of the Clayton Act (15 U.S.C. 15), as amended by 
section 502 of this Act, is amended by striking ``may sue therefor'' 
and all that follows and inserting ``may sue therefor in any district 
court of the United States in the district in which the defendant 
resides or is found or has an agent, without respect to the amount in 
controversy, and shall recover threefold the damages by him sustained, 
the cost of suit, including a reasonable attorney's fee, and simple 
interest on threefold the damages by him sustained for the period 
beginning on the date of service of such person's pleading setting 
forth a claim under the antitrust laws and ending on the date of 
judgment.''.

SEC. 504. SAFE HARBOR FOR EFFORTS TO FACILITATE DATA PORTABILITY AND 
              INTEROPERABILITY.

    (a) In General.--Except as provided in subsection (b), it shall not 
constitute a violation of the antitrust laws for 2 or more persons 
providing comparable interactive computer services (as defined in 
section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f))) to 
enter into a joint venture or similar partnership to create standard 
protocols for data portability or interoperability between the 
interactive computer services if--
            (1) the joint venture or similar partnership does not 
        exclude from the joint venture or similar partnership any 
        person that offers comparable interactive computer services; 
        and
            (2) the standard protocols do not restrict competition in 
        any market.
    (b) Exception for Per Se Violations.--Subsection (a) shall not 
apply to conduct constituting a per se violation of section 1 of the 
Sherman Act (15 U.S.C. 1).

SEC. 505. STUDY OF ASSIGNING ALL ANTITRUST CASES TO CERTAIN DISTRICT 
              COURTS OF THE UNITED STATES.

    Not later than 1 year after the date of enactment of this Act, the 
Director of the Administrative Office of the United States Courts shall 
submit to Congress a report reviewing the feasibility, possible 
benefits, and potential harms of establishing a program to designate 
certain district courts of the United States that will hear cases 
raising 1 or more claims under the antitrust laws.

SEC. 506. BALANCING HARM AND BENEFITS.

    The Clayton Act (15 U.S.C. 12 et seq.) is amended--
            (1) by redesignating section 28 (15 U.S.C. 27) as section 
        31; and
            (2) by inserting after section 27 the following:

``SEC. 28. BALANCING HARM AND BENEFITS.

    ``(a) In General.--In any civil action brought under this Act or 
the Sherman Act (15 U.S.C. 1 et seq.), a court may consider a benefit, 
efficiency, or other mitigating factor only to the degree that it--
            ``(1) is tied to the market in which competition or 
        consumers are harmed;
            ``(2) can reasonably be achieved only through the conduct 
        or transaction at issue;
            ``(3) is reasonably quantifiable;
            ``(4) will accrue to the consumer; and
            ``(5) has a high likelihood of being achieved.
    ``(b) Examination of Competitive Effects.--In examining the 
competitive effects of conduct or a transaction challenged under any of 
the antitrust laws, a court shall consider exclusively the effects of 
the challenged conduct or transaction on consumer welfare, including 
price, output, quality, innovation, and consumer choice.
    ``(c) Rule of Construction.--Nothing in this section shall be 
construed to require that, in the aggregate, in-market benefits, 
efficiencies, or mitigating factors outnumber or outweigh any out-of-
market benefits, efficiencies, or mitigating factors.
    ``(d) Definition of Consumer.--In this section, the term `consumer' 
includes buyers and sellers.''.

SEC. 507. ACTIONS ON BEHALF OF CONSUMERS UNDER SHERMAN ACT.

    Section 4 of the Clayton Act (15 U.S.C. 15), is amended--
            (1) by inserting after subsection (c), as added by section 
        501 of this Act, the following:
    ``(d)(1) The Assistant Attorney General may bring an action on 
behalf of persons in the United States injured in their business or 
property by reason of anything forbidden under the Sherman Act (15 
U.S.C. 1 et seq.) in any district court of the United States in the 
district in which the defendant resides or is found or has an agent, 
without respect to the amount in controversy, and shall recover 
threefold the damages sustained by such persons, and the cost of suit, 
including a reasonable attorney's fee.
    ``(2)(A) The court may award under this subsection, pursuant to a 
motion by the Assistant Attorney General promptly made, simple interest 
on actual damages in accordance with the requirements under subsection 
(a).
    ``(B) A court may not award any damages under this subsection that 
are duplicative of damages awarded before the date of the award under 
this subsection in a separate civil action pertaining to the same 
conduct and injured party.
    ``(C) A court awarding damages to a person in a civil action after 
the date of an award of damages under this subsection that would be 
duplicative of damages awarded to the Assistant Attorney General on 
behalf of the person shall direct that such damages shall first be paid 
by the Assistant Attorney General from amounts in the Fund and, to the 
extent such damages are not fully paid from amounts in the Fund, shall 
be paid by the defendant.
    ``(3)(A) There is established in the Treasury of the United States 
a fund to be known as the `Antitrust Consumer Damages Fund' (in this 
subsection referred to as the `Fund'), which shall consist of amounts 
deposited under subparagraph (B).
    ``(B) Notwithstanding section 3302 of title 31, United States Code, 
any amounts received by the Assistant Attorney General under an award 
under this subsection--
            ``(i) shall be deposited in the Fund; and
            ``(ii) shall be available to the Assistant Attorney 
        General, without further appropriation, for distribution to 
        persons in the United States harmed by the applicable violation 
        of the Sherman Act (15 U.S.C. 1 et seq.).
    ``(4) Effective on the day after the date that is 10 years after 
the date on which an award is received under this subsection, the 
unobligated balances in the Fund of amounts that were received under 
the award are rescinded and shall be deposited in the general fund of 
the Treasury.''; and
            (2) in subsection (f), as so redesignated by section 501 of 
        this Act--
                    (A) by redesignating paragraphs (1) and (2) as 
                paragraphs (2) and (3), respectively; and
                    (B) by inserting before paragraph (1) the 
                following:
            ``(1) the term `Assistant Attorney General' means the 
        Assistant Attorney General in charge of the Antitrust Division 
        of the Department of Justice;''.

SEC. 508. CIVIL FINES FOR KNOWING VIOLATIONS OF THE ANTITRUST LAWS.

    Section 4 of the Clayton Act (15 U.S.C. 15), is amended by 
inserting after subsection (d), as added by section 507 of this Act, 
the following:
    ``(e)(1) In this subsection, the term `covered antitrust laws' 
means any provision of the antitrust laws, other than section 7 of this 
Act.
    ``(2)(A) In an action brought by the Assistant Attorney General in 
an appropriate district court of the United States, the court may 
impose a civil fine against any person who engaged in a knowing 
violation of any provision of the covered antitrust laws.
    ``(B) The maximum amount of a civil fine imposed on a person under 
subparagraph (A) shall be 15 percent of the total of the gross income 
of the person from the line of business at issue during each year 
during which the person engaged in the violation.
    ``(3) A civil fine under paragraph (2) shall be in addition to any 
damages awarded or other remedy imposed in connection with the 
violation of the provision of the covered antitrust laws.''.

SEC. 509. DIRECT EVIDENCE OF INTENT TO AVOID OR RESTRICT COMPETITION.

    The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting 
after section 28, as added by section 506 of this Act, the following:

``SEC. 29. DIRECT EVIDENCE OF INTENT TO AVOID OR RESTRICT COMPETITION.

    ``In any civil action brought under this Act or the Sherman Act (15 
U.S.C. 1 et seq.), if there is direct evidence that the conduct or 
transaction at issue was undertaken with the clear intent to harm or 
prevent competition, which shall not require proof that the person 
knowingly violated the antitrust laws, the court shall deem the conduct 
or transaction to be anticompetitive.''.

SEC. 510. LIMIT ON CONTRACTING.

    The head of an Executive agency may not award a contract for the 
procurement of goods or services to any person that has been found by a 
trier of fact in a court of competent jurisdiction to have violated any 
of the antitrust laws, except for section 7 of the Clayton Act (15 
U.S.C. 18), on or after the date that is 5 years before the date on 
which the procurement process for the goods or services begins.

SEC. 511. PROHIBITING DISCRIMINATION IN DISTRIBUTION.

    The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting 
after section 29, as added by section 509 of this Act, the following:

``SEC. 30. PROHIBITING DISCRIMINATION IN DISTRIBUTION.

    ``(a) Definitions.--In this section:
            ``(1) Distributed product.--The term `distributed product' 
        means a good or service that is distributed by a person other 
        than the person which manufactures or provides the good or 
        service.
            ``(2) Distribution market.--The term `distribution market' 
        means the geographic and product markets for the distribution 
        of a distributed product.
    ``(b) Discrimination by Persons With Monopoly Power.--A person with 
monopoly power in a distribution market, that also offers a product or 
service that competes with a distributed product in the distribution 
market in which it has monopoly power, may not engage in discrimination 
in that distribution market that harms competition in the market for 
the distributed product.''.

SEC. 512. AUTHORIZATIONS OF APPROPRIATIONS.

    There is authorized to be appropriated for the Antitrust Division 
of the Department of Justice $600,000,000 for fiscal year 2022.
                                 <all>