[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 225 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                 S. 225

   To reform the antitrust laws to better protect competition in the 
 American economy, to amend the Clayton Act to modify the standard for 
an unlawful acquisition, to deter anticompetitive exclusionary conduct 
  that harms competition and consumers, to enhance the ability of the 
 Department of Justice and the Federal Trade Commission to enforce the 
                antitrust laws, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 4, 2021

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

_______________________________________________________________________

                                 A BILL


 
   To reform the antitrust laws to better protect competition in the 
 American economy, to amend the Clayton Act to modify the standard for 
an unlawful acquisition, to deter anticompetitive exclusionary conduct 
  that harms competition and consumers, to enhance the ability of the 
 Department of Justice and the Federal Trade Commission to enforce the 
                antitrust laws, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Competition and Antitrust Law 
Enforcement Reform Act of 2021''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) competitive markets, in which multiple firms compete to 
        buy and sell products and services, are critical to ensuring 
        economic opportunity for all people in the United States and 
        providing resilience to the economy during unpredictable times;
            (2) when companies compete, businesses offer the highest 
        quality and choice of goods and services for the lowest 
        possible prices to consumers and other businesses;
            (3) competition fosters small business growth, reduces 
        economic inequality, and spurs innovation and job creation;
            (4) in the United States economy today, the presence and 
        exercise of market power is substantial and growing;
            (5) the presence and exercise of market power makes it more 
        difficult for people in the United States to start their own 
        businesses, depresses wages, and increases economic inequality, 
        with particularly damaging effects on historically 
        disadvantaged communities;
            (6) market power and undue market concentration contribute 
        to the consolidation of political power, undermining the health 
        of democracy in the United States;
            (7) the anticompetitive effects of monopoly power or buyer 
        market power include higher prices, lower quality, lessened 
        choice, reduced innovation, foreclosure of competitors, and 
        increased entry barriers;
            (8) monopsony power or seller market power allows a firm to 
        force suppliers of goods or services to accept below market 
        prices or to force workers to accept below market wages, 
        resulting in lower quality products and services, reduced 
        opportunities for suppliers and workers, reduced availability 
        of products and services for consumers, reduced innovation, 
        foreclosure of competitors, and increased entry barriers;
            (9) horizontal consolidation, vertical consolidation, and 
        conglomerate mergers all have potential to increase market 
        power and cause anticompetitive harm;
            (10) extensive consolidation is reducing competition and 
        threatens to place the American dream further out of reach for 
        many consumers in the United States;
            (11) since 2008, firms in the United States have engaged in 
        over $10,000,000,000,000 in mergers and acquisitions;
            (12) the acquisition of nascent or potential rivals by 
        dominant firms can present significant long-term threats to 
        competition and innovation;
            (13) the acquisition, by one of its competitors, of a 
        maverick firm that plays a disruptive role in the market--by 
        using an innovative business model or technology, offering 
        lower prices or new, different products or services products, 
        or by other means that benefit consumers--can present a threat 
        to competition;
            (14) section 7 of the Clayton Act (15 U.S.C. 18), is the 
        primary line of defense against anticompetitive mergers;
            (15) in recent years, some court decisions and enforcement 
        policies have limited the vitality of the Clayton Act to 
        prevent harmful consolidation by--
                    (A) discounting previously accepted presumptions 
                that certain acquisitions are anticompetitive;
                    (B) focusing inordinately on the effect of an 
                acquisition on price in the short term, to the 
                exclusion of other potential anticompetitive effects;
                    (C) underestimating the dangers that horizontal, 
                vertical, and conglomerate mergers will lower quality, 
                reduce choice, impede innovation, exclude competitors, 
                increase entry barriers, or create buyer power, 
                including monopsony power; and
                    (D) requiring the government to prove harmful 
                effects of a proposed merger to a near certainty;
            (16) anticompetitive exclusionary conduct constitutes a 
        particularly harmful exercise of market power and a substantial 
        threat to the United States economy;
            (17) when dominant sellers exercise market power, they harm 
        buyers by overcharging them, reducing product or service 
        quality, limiting their choices, and impairing innovation;
            (18) when dominant buyers exercise market power, they harm 
        suppliers by underpaying them, limiting their business 
        opportunities, and impairing innovation;
            (19) when dominant employers exercise market power, they 
        harm workers by paying them low wages, reducing their benefits, 
        and limiting their future employment opportunities;
            (20) nascent or potential rivals--even those that are 
        unprofitable or inefficient--can be an important source of 
        competitive discipline for dominant firms;
            (21) antitrust enforcement against anticompetitive 
        exclusionary conduct has been impeded when courts have declined 
        to rigorously examine the facts in favor of relying on 
        inaccurate economic assumptions that are inconsistent with 
        contemporary economic learning, such as presuming that market 
        power is not durable and can be expected to self-correct, that 
        monopolies can drive as much or more innovation than a 
        competitive market, that above-cost pricing cannot harm 
        competition, and other flawed assumptions;
            (22) the courts of the United States have improperly 
        implied immunity from the antitrust laws based on Federal 
        regulatory statutes, even limiting the application of statutory 
        antitrust savings clauses passed by Congress;
            (23) the civil remedies currently available to cure 
        violations of the Sherman Antitrust Act, including injunctions, 
        equitable monetary relief, and private damages, have not proven 
        sufficient, on their own, to deter anticompetitive conduct;
            (24) in some cases, effective deterrence requires the 
        imposition of civil penalties, alone or in combination with 
        existing remedies, including structural relief, behavioral 
        relief, private damages, and equitable monetary relief, 
        including disgorgement and restitution; and
            (25) Federal antitrust enforcement budgets have failed to 
        keep pace with the growth of the economy and increasing demands 
        on agency resources, significantly undermining the ability of 
        the Federal antitrust agencies to fulfill their law enforcement 
        missions and contributing to the rise of market power in the 
        American economy.
    (b) Purposes.--The purposes of this Act are to--
            (1) enhance competition throughout the American economy by 
        strengthening antitrust enforcement by the Department of 
        Justice, the Federal Trade Commission, the State enforcement 
        agencies, and private parties;
            (2) revise the legal standard under section 7 of the 
        Clayton Act to better enable enforcers to arrest the likely 
        anticompetitive effects of harmful mergers in their incipiency, 
        as Congress intended, by clarifying that the potential effects 
        that may justify prohibiting a merger under the Clayton Act 
        include lower quality, reduced choice, reduced innovation, the 
        exclusion of competitors, or increased entry barriers, in 
        addition to increased price to buyers or reduced price to 
        sellers;
            (3) amend the Clayton Act to clarify that an acquisition 
        that tends to create a monopsony violates the Clayton Act;
            (4) establish simple, cost-effective decision rules that 
        require the parties to certain acquisitions that either 
        significantly increase concentration or are extremely large 
        bear the burden of establishing that the acquisition will not 
        materially harm competition;
            (5) prohibit and deter exclusionary conduct that harms 
        competition, particularly by dominant firms;
            (6) enable the Department of Justice and the Federal Trade 
        Commission to seek civil monetary penalties, in addition to 
        existing remedies, for violations of the Sherman Act;
            (7) give the Department of Justice and the Federal Trade 
        Commission additional financial resources and enforcement tools 
        to craft remedies for individual violations that are effective 
        to deter future unlawful conduct and proportionate to the 
        gravity of the violation;
            (8) provide further protections for those who provide 
        evidence of anticompetitive conduct to government enforcers and 
        potential financial rewards for whistleblowers who provide 
        information to the government that leads to a criminal fine; 
        and
            (9) grant successful antitrust plaintiffs the right to 
        obtain prejudgment interest on damages awards to further deter 
        anticompetitive conduct and more fully compensate injured 
        parties.

SEC. 3. DEFINITION.

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

SEC. 4. UNLAWFUL ACQUISITIONS.

    (a) Market Power.--Section 1(a) of the Clayton Act (15 U.S.C. 
12(a)) is amended by adding at the end the following:
            ``the term `market power' in this Act means the ability of 
        a person, or a group of persons acting in concert, to 
        profitably impose terms or conditions on counterparties, 
        including terms regarding price, quantity, product or service 
        quality, or other terms affecting the value of consideration 
        exchanged in the transaction, that are more favorable to the 
        person or group of persons imposing them than what the person 
        or group of persons could obtain in a competitive market.''.
    (b) Unlawful Acquisitions.--Section 7 of the Clayton Act (15 U.S.C. 
18) is amended--
            (1) in the first and second undesignated paragraphs, by 
        striking ``substantially to lessen'' each place that term 
        appears and inserting ``to create an appreciable risk of 
        materially lessening'';
            (2) by inserting ``or a monopsony'' after ``monopoly'' each 
        place that term appears; and
            (3) by adding at the end the following:
    ``In a case brought by the United States, the Federal Trade 
Commission, or a State attorney general, a court shall determine that 
the effect of an acquisition described in this section may be to create 
an appreciable risk of materially lessening competition or to tend to 
create a monopoly or a monopsony, in or affecting commerce, if--
            ``(1) the acquisition would lead to a significant increase 
        in market concentration in any relevant market;
            ``(2)(A) the acquiring person has a market share of greater 
        than 50 percent or otherwise has significant market power, as a 
        seller or a buyer, in any relevant market, and as a result of 
        the acquisition, the acquiring person would obtain control over 
        entities or assets that compete or have a reasonable 
        probability of competing with the acquiring person in the same 
        relevant market; or
            ``(B) as a result of the acquisition, the acquiring person 
        would obtain control over entities or assets that have a market 
        share of greater than 50 percent or otherwise have significant 
        market power, as a seller or a buyer, in any relevant market, 
        and the acquiring person competes or has a reasonable 
        probability of competing with the entities or assets over which 
        it would obtain control, as result of the acquisition, in the 
        same relevant market;
            ``(3) the acquisition would lead to the combination of 
        entities or assets that compete or have a reasonable 
        probability of competing in a relevant market, and either the 
        acquiring person or the entities or assets over which it would 
        obtain control prevents, limits, or disrupts coordinated 
        interaction among competitors in a relevant market or has a 
        reasonable probability of doing so;
            ``(4) the acquisition--
                    ``(A) would likely enable the acquiring person to 
                unilaterally and profitably exercise market power or 
                materially increase its ability to do so; or
                    ``(B) would materially increase the probability of 
                coordinated interaction among competitors in any 
                relevant market; or
            ``(5)(A) the acquisition is not a transaction that is 
        described in section 7A(c); and
            ``(B)(i) as a result of such acquisition, the acquiring 
        person would hold an aggregate total amount of the voting 
        securities and assets of the acquired person in excess of 
        $5,000,000,000 (as adjusted and published for each fiscal year 
        beginning after September 30, 2022, in the same manner as 
        provided in section 8(a)(5) to reflect the percentage change in 
        the gross national product for such fiscal year compared to the 
        gross national product for the year ending September 30, 2021); 
        or
            ``(ii)(I) the person acquiring or the person being acquired 
        has assets, net annual sales, or a market capitalization 
        greater than $100,000,000,000 (as so adjusted and published); 
        and
            ``(II) as a result of such acquisition, the acquiring 
        person would hold an aggregate total amount of the voting 
        securities and assets of the acquired person in excess of 
        $50,000,000 (as so adjusted and published),
        unless the acquiring or acquired person establish, by a 
        preponderance of the evidence, that the effect of the 
        acquisition will not be to create an appreciable risk of 
        materially lessening competition or tend to create a monopoly 
        or a monopsony. In this paragraph, the term `materially' means 
        more than a de minimis amount.''.

SEC. 5. POST-SETTLEMENT DATA.

    Section 7A of the Clayton Act (15 U.S.C. 18a) is amended by adding 
at the end the following:
    ``(l)(1) Each person who enters into an agreement with the Federal 
Trade Commission or the United States to resolve a proceeding brought 
under the antitrust laws or under the Federal Trade Commission Act (15 
U.S.C. 41 et seq.) regarding an acquisition with respect to which 
notification is required under this section shall, on an annual basis 
during the 5-year period beginning on the date on which the agreement 
is entered into, submit to the Federal Trade Commission or the 
Assistant Attorney General, as applicable, information sufficient for 
the Federal Trade Commission or the United States, as applicable, to 
assess the competitive impact of the acquisition, including--
            ``(A) the pricing, availability, and quality of any product 
        or service, or inputs thereto, in any market, that was covered 
        by the agreement;
            ``(B) the source, and the resulting magnitude and extent, 
        of any cost-saving efficiencies or any benefits to consumers or 
        trading partners that were claimed as a benefit of the 
        acquisition and the extent to which any cost savings were 
        passed on to consumers or trading partners; and
            ``(C) the effectiveness of any divestitures or any 
        conditions placed on the acquisition in fully restoring 
        competition.
    ``(2) The requirement to provide the information described in 
paragraph (1) shall be included in an agreement described in that 
paragraph.
    ``(3) The Federal Trade Commission, with the concurrence of the 
Assistant Attorney General, by rule in accordance with section 553 of 
title 5, United States Code, and consistent with the purposes of this 
section--
            ``(A) shall require that the information described in 
        paragraph (1) be in such form and contain such documentary 
        material and information relevant to an acquisition as is 
        necessary and appropriate to enable the Federal Trade 
        Commission and the Assistant Attorney General to assess the 
        competitive impact of the acquisition under paragraph (1); and
            ``(B) may--
                    ``(i) define the terms used in this subsection;
                    ``(ii) exempt, from the requirements of this 
                section, information not relevant in assessing the 
                competitive impact of the acquisition under paragraph 
                (1); and
                    ``(iii) prescribe such other rules as may be 
                necessary and appropriate to carry out the purposes of 
                this section.''.

SEC. 6. FEDERAL TRADE COMMISSION STUDY.

    Not later than 2 years after the date of enactment of this Act, the 
Federal Trade Commission, in consultation with the Securities and 
Exchange Commission, shall conduct and publish a study, using any 
compulsory process 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.

SEC. 7. GAO STUDIES.

    (a) In General.--Not later than 18 months after the date of 
enactment of this Act, the Comptroller General of the United States 
shall--
            (1) conduct a study to assess the success of merger 
        remedies required by the Department of Justice or the Federal 
        Trade Commission in consent decrees entered into since 6 years 
        prior to the date of enactment of this Act, including the 
        impact on maintaining competition, a comparison of structural 
        and conduct remedies, and the viability of divested assets; and
            (2) conduct a study on the impact of mergers and 
        acquisitions on wages, employment, innovation, and new business 
        formation.
    (b) Update.--The Comptroller General of the United States shall--
            (1) update the study under paragraph (1) 3 years and 6 
        years after the date of enactment of this Act based on the 
        information provided under section 7A(l) of the Clayton Act, as 
        added by section 5 of this Act; and
            (2) identify specific remedies or alleged merger benefits 
        that require additional information or research.

SEC. 8. OFFICE OF COMPETITION ADVOCATE.

    (a) Definitions.--In this section--
            (1) the term ``agency'' has the meaning given the term in 
        section 551 of title 5, United States Code;
            (2) the term ``covered company'' means any company that 
        has, at any time, been required to make a filing under section 
        7A of the Clayton Act (15 U.S.C. 18a);
            (3) the term ``Office'' means the Office of the Competition 
        Advocate established under subsection (b);
            (4) the term ``Chairman'' means the Chairman of the 
        Commission; and
            (5) the term ``Commission'' means the Federal Trade 
        Commission.
    (b) Establishment.--There is established within the Federal Trade 
Commission the Office of the Competition Advocate.
    (c) Competition Advocate.--
            (1) In general.--The head of the Office shall be the 
        Competition Advocate, who shall--
                    (A) report directly to the Chairman; and
                    (B) be appointed by the Chairman, with the 
                concurrence of a majority of the Commission, including 
                at least 1 Commissioner who is not a member of the same 
                political party of the majority members of the 
                Commission, from among individuals having experience in 
                advocating for the promotion of competition.
            (2) Compensation.--The annual rate of pay for the 
        Competition Advocate shall be equal to the highest rate of 
        annual pay for other senior executives who report to the 
        Chairman of the Commission.
            (3) Limitation on service.--An individual who serves as the 
        Competition Advocate may not be employed by the Commission--
                    (A) during the 2-year period ending on the date of 
                appointment as Competition Advocate; or
                    (B) during the 5-year period beginning on the date 
                on which the person ceases to serve as the Competition 
                Advocate.
    (d) Staff of Office.--The Competition Advocate, after consultation 
with the Chairman of the Commission, shall retain or employ independent 
counsel, research staff, and service staff, as the Competition Advocate 
determines is necessary to carry out the functions, powers, and duties 
of the Office.
    (e) Duties and Powers.--The Competition Advocate shall--
            (1) recommend processes or procedures that will allow the 
        Federal Trade Commission and the Antitrust Division of the 
        Department of Justice to improve the ability of each agency to 
        solicit reports from consumers, small businesses, and employees 
        about possible anticompetitive practices or adverse effects of 
        concentration;
            (2) publicly provide recommendations to other Federal 
        agencies about administrative actions that may have 
        anticompetitive effects and the potential harm to competition 
        if those actions are carried out;
            (3) provide recommendations to other Federal agencies about 
        administrative actions that may have procompetitive effects and 
        the potential benefit to competition if those actions are 
        carried out;
            (4) publish periodic reports on--
                    (A) market competition and its impact on the United 
                States, local geographic areas, and different 
                demographic and socioeconomic groups; and
                    (B) the success of remedies required by the 
                Department of Justice or the Federal Trade Commission 
                in consent decrees;
            (5) collect data regarding concentration levels across 
        industries and the impact and degree of antitrust enforcement; 
        and
            (6) standardize the types and formats of data reported and 
        collected.
    (f) Subpoena Authority.--
            (1) In general.--The Competition Advocate may either 
        require the submission of or accept voluntary submissions of 
        periodic and other reports from any covered company for the 
        purpose of assessing competition and its impact on the United 
        States, local geographic areas, and different demographic and 
        socioeconomic groups.
            (2) Written finding.--Before issuing a subpoena to collect 
        the information described in paragraph (1), the Competition 
        Advocate shall make a written finding that--
                    (A) the data is required to carry out the functions 
                of the Competition Advocate; and
                    (B) the information is not available from a public 
                source or another agency.
            (3) Mitigation of report burden.--Before requiring the 
        submission of a report from any company required to make a 
        filing under section 7A of the Clayton Act (15 U.S.C. 18a), the 
        Competition Advocate shall--
                    (A) coordinate with other agencies or authority; 
                and
                    (B) whenever possible, rely on information 
                available from such agencies or authority.
    (g) Data Center.--
            (1) Establishment.--There is established within the Office 
        the Data Center.
            (2) Duties.--The Data Center shall--
                    (A) collect, validate, and maintain data obtained 
                from agencies, as defined in section 551 of title 5, 
                United States Code, commercial data providers, publicly 
                available data sources, and any covered company; and
                    (B) prepare and publish, in a manner that is easily 
                accessible to the public--
                            (i) a concentration database;
                            (ii) a merger enforcement database;
                            (iii) any other database that the 
                        Competition Advocate determines is necessary to 
                        carry out the duties of the Office; and
                            (iv) the format and standards for Office 
                        data, including standards for reporting 
                        financial transaction and position data to the 
                        Office.
            (3) Regulations.--The Competition Advocate shall promulgate 
        regulations relating to the collection and standardizing of 
        data under paragraph (2).
            (4) Confidentiality.--
                    (A) In general.--The Data Center may not disclose 
                any confidential data collected under paragraph (2).
                    (B) Requirements.--Data obtained from an agency 
                shall be subject to the same confidentiality 
                requirements and protection as the agency providing the 
                data.
                    (C) Information security.--The Competition Advocate 
                shall ensure that data collected and maintained by the 
                Data Center are kept secure and protected against 
                unauthorized disclosure.
    (h) Division of Market Analysis.--
            (1) Establishment.--There is established within the Office 
        the Division of Market Analysis.
            (2) Leadership.--The head of the Division of Market 
        Analysis shall be the Director of Market Analysis, who shall--
                    (A) report directly to the Competition Advocate; 
                and
                    (B) be appointed by the Competition Advocate, with 
                the concurrence of a majority of the Commission, 
                including at least one Commissioner who is not a member 
                of the same political party of the majority members of 
                the Commission.
            (3) Division staff.--The Division of Market Analysis shall 
        retain or employ independent legal, economic, research, and 
        service staff sufficient to carry out the functions, powers, 
        and duties of the Division.
            (4) Duties and powers.--The Division of Market Analysis--
                    (A) shall, at the direction of the Competition 
                Advocate or the Commission, conduct investigations of 
                markets or industry sectors to analyze the competitive 
                conditions and dynamics affecting such markets or 
                industry sectors, including the effects that market 
                concentration, mergers and acquisitions, certain types 
                of agreements, and other forms of business conduct have 
                on competition, consumers, workers and innovation, and 
                shall publish reports on the results of such 
                investigations;
                    (B) shall, at the direction of the Competition 
                Advocate or the Commission, conduct investigations 
                concerning the competitive effects of acquisitions that 
                have been consummated no less than 2 years prior to the 
                start of the investigation, which shall include 
                recommendations concerning appropriate enforcement 
                action to remedy any anticompetitive effects discovered 
                and may include assessments of--
                            (i) the conditions of the relevant markets 
                        affected by the acquisition, over the period 
                        since the acquisition was consummated, 
                        including, but not limited to, the potential 
                        impact that the acquisition has had on--
                                    (I) the prices of goods or 
                                services, including wages in any 
                                affected labor markets;
                                    (II) the output and quality of 
                                goods and services;
                                    (III) the entry or exit of 
                                competitors;
                                    (IV) innovation;
                                    (V) consumer choice and product 
                                variety;
                                    (VI) the opportunity of suppliers 
                                and works to sell their product or 
                                services;
                                    (VII) coordinated interaction 
                                between competitors; and
                                    (VIII) subsequent mergers and 
                                acquisitions activity;
                            (ii) whether the acquiring person or its 
                        successors in interest--
                                    (I) complied with all obligations 
                                under any agreement with the Federal 
                                Trade Commission, the United States, or 
                                State law enforcement authorities to 
                                resolve a proceeding brought under the 
                                antitrust laws; and
                                    (II) achieved measurable, 
                                transaction-specific efficiencies, 
                                which did not arise from 
                                anticompetitive reductions of output, 
                                as a result of the acquisition; and
                            (iii) whether any agreements with the 
                        Federal Trade Commission or the United States 
                        to resolve a proceeding brought under the 
                        antitrust laws regarding the acquisition was 
                        effective in mitigating the anticompetitive 
                        effects from the acquisition;
                    (C) shall rely on public data and information, 
                public comment, information from other Federal 
                agencies, information from the Data Center, information 
                obtained pursuant to the Competition Advocate's 
                subpoena authority under subsection (f) of this section 
                and may use compulsory process under section 6(b) of 
                the Federal Trade Commission Act (15 U.S.C. 46(b)) as 
                necessary to carry out the functions set forth in 
                subsections (h)(3)(A) and (h)(3)(B) of this section; 
                and
                    (D) shall report any evidence it obtains that any 
                person, partnership, or corporation has engaged in 
                transactions or conduct that may constitute of a 
                violation of the antitrust law to the Commission, which 
                may institute further investigation, initiate 
                enforcement proceedings, or refer such evidence to the 
                Attorney General.

SEC. 9. EXCLUSIONARY CONDUCT.

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

``SEC. 26A. EXCLUSIONARY CONDUCT.

    ``(a) Definitions.--In this section:
            ``(1) Exclusionary conduct.--
                    ``(A) In general.--The term `exclusionary conduct' 
                means conduct that--
                            ``(i) materially disadvantages 1 or more 
                        actual or potential competitors; or
                            ``(ii) tends to foreclose or limit the 
                        ability or incentive of 1 or more actual or 
                        potential competitors to compete.
                    ``(B) Limitations.--
                            ``(i) Applying for or enforcing a patent, 
                        trademark, or copyright, unless such 
                        applications or enforcement actions are 
                        baseless or made in bad faith or in violation 
                        of a legal obligation, shall not alone 
                        constitute exclusionary conduct, but such 
                        actions may be considered as part of a course 
                        of conduct that constitutes exclusionary 
                        conduct.
                            ``(ii) Conduct that is necessary to comply 
                        with Federal or State law shall not alone 
                        constitute exclusionary conduct, but such 
                        actions may be considered as part of a course 
                        of conduct that constitutes exclusionary 
                        conduct.
            ``(2) Market power.--The term `market power' means the 
        ability of a person, or a group of persons acting in concert, 
        to profitably impose terms or conditions on counterparties, 
        including terms regarding price, quantity, product or service 
        quality, or other terms affecting the value of consideration 
        exchanged in the transaction, that are more favorable to the 
        person or group of persons imposing them than what the person 
        or group of persons could obtain in a competitive market.
    ``(b) Violation.--
            ``(1) In general.--It shall be unlawful for a person, 
        acting alone or in concert with other persons, to engage in 
        exclusionary conduct that presents an appreciable risk of 
        harming competition.
            ``(2) Unfair method of competition.--A violation of 
        paragraph (1) shall also constitute an unfair method of 
        competition under section 5 of the Federal Trade Commission Act 
        (15 U.S.C. 45).
    ``(c) Presumption.--
            ``(1) In general.--Except as provided in paragraph (2), 
        exclusionary conduct shall be presumed to present an 
        appreciable risk of harming competition and shall be a 
        violation of subsection (b)(1) if the exclusionary conduct is 
        undertaken, with respect to a relevant market, by a person or 
        by a group of more than 1 person acting in concert that--
                    ``(A) has a market share of greater than 50 percent 
                as a seller or a buyer in the relevant market; or
                    ``(B) otherwise has significant market power in the 
                relevant market.
            ``(2) Exception.--Paragraph (1) shall not apply if the 
        defendant establishes, by a preponderance of the evidence, 
        that--
                    ``(A) distinct procompetitive benefits of the 
                exclusionary conduct in the relevant market eliminate 
                the risk of harming competition presented by the 
                exclusionary conduct;
                    ``(B) 1 or more persons, not including any person 
                participating in or facilitating the exclusionary 
                conduct, have entered or expanded their presence in the 
                market with the effect of eliminating the risk of 
                harming competition posed by the exclusionary conduct; 
                or
                    ``(C) the exclusionary conduct does not present an 
                appreciable risk of harming competition.
    ``(d) Considerations.--If the presumption in subsection (c) does 
not apply, the determination of whether exclusionary conduct presents 
an appreciable risk of harming competition shall be based on the 
totality of the circumstances, which may include consideration of--
            ``(1) the extent to which any distinct procompetitive 
        benefits of the exclusionary conduct substantially eliminate 
        the risk of harming competition presented by the exclusionary 
        conduct; and
            ``(2) whether 1 or more persons, not including any person 
        participating in or facilitating the exclusionary conduct, have 
        entered or expanded their presence in the market, substantially 
        eliminating the risk of harming competition presented by the 
        exclusionary conduct.
    ``(e) Limitations.--Although the following circumstances may 
constitute evidence of a violation of subsection (b)(1), such violation 
does not require finding--
            ``(1) that the unilateral conduct of the defendant altered 
        or terminated a prior course of dealing between the defendant 
        and a person subject to the exclusionary conduct;
            ``(2) that the defendant treated persons subject to the 
        exclusionary conduct differently than the defendant treated 
        other persons;
            ``(3) that any price of the defendant for a product or 
        service was below any measure of the costs to the defendant of 
        providing the product or service;
            ``(4) that a defendant with significant market power in a 
        relevant market has recouped or is likely to recoup the losses 
        it incurred or incurs from below-cost pricing for products or 
        services in the relevant market;
            ``(5) that the conduct of the defendant makes no economic 
        sense apart from its tendency to harm competition;
            ``(6) that the risk of harming competition presented by the 
        conduct of the defendant or any resulting actual harm to 
        competition have been quantified or proven with quantitative 
        evidence; or
            ``(7) that when a defendant operates a multi-sided platform 
        business, the conduct of the defendant presents an appreciable 
        risk of harming competition on more than 1 side of the multi-
        sided platform.
    ``(f) Civil Penalties.--Any person who violates subsection (b)(1) 
shall be liable to the United States for a civil penalty, which may be 
recovered in a civil action brought by the Attorney General of the 
United States, of not more than the greater of--
            ``(1) 15 percent of the total United States revenues of the 
        person for the previous calendar year; or
            ``(2) 30 percent of the United States revenues of the 
        person in any line of commerce affected or targeted by the 
        unlawful conduct during the period of the unlawful conduct.''.
    (b) Federal Trade Commission Act.--
            (1) Civil penalties.--Section 5 of the Federal Trade 
        Commission Act (15 U.S.C. 45) is amended by adding at the end 
        the following:
    ``(p) Civil Penalty for Violation of Section 26A of the Clayton 
Act.--The Commission may commence a civil action in a district court of 
the United States against any person, partnership, or corporation who 
violates subsection (a)(1) respecting an unfair method of competition 
that constitutes a violation of section 26A of the Clayton Act to 
recover a civil penalty, which shall accrue to the United States, in an 
amount not more than the greater of--
            ``(1) 15 percent of the total United States revenues of the 
        person, partnership, or corporation for the previous calendar 
        year; or
            ``(2) 30 percent of the United States revenues of the 
        person, partnership, or corporation in any line of commerce 
        affected or targeted by the unlawful conduct during the period 
        of the unlawful conduct.''.
            (2) Commission litigation authority.--Section 16(a)(2) of 
        the Federal Trade Commission Act (15 U.S.C. 56(a)(2)) is 
        amended--
                    (A) in subparagraph (D), by striking ``or'' after 
                the semicolon;
                    (B) in subparagraph (E)--
                            (i) by moving the margins 2 ems to the 
                        left; and
                            (ii) by inserting ``or'' after the 
                        semicolon; and
                    (C) by inserting after subparagraph (E) the 
                following:
                    ``(F) to recover civil penalties under section 5(p) 
                of this Act;''.
    (c) Enforcement Guidelines.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Attorney General and the Federal 
        Trade Commission shall issue joint guidelines outlining 
        policies, practices, and analytical techniques relating to 
        agency enforcement under section 26A of the Clayton Act, as 
        added by section 4 of this Act, with the goal of promoting 
        transparency and deterring violations of section 26A of the 
        Clayton Act.
            (2) Updates.--The Attorney General and the Federal Trade 
        Commission shall update the joint guidelines issued under 
        subsection (a), as needed to reflect current agency policies 
        and practices, but not less frequently than once every 5 years 
        beginning on the date of enactment of this Act.
            (3) Public notice and comment.--
                    (A) Guidelines.--Before issuing guidelines under 
                subsection (c)(1) or (c)(2), the Attorney General and 
                the Federal Trade Commission shall publish proposed 
                guidelines in draft form and provide public notice and 
                opportunity for comment for not less than 60 days after 
                the date on which the guidelines are published.
                    (B) Inapplicability of rulemaking provisions.--The 
                provisions of section 553 of title 5, United States 
                Code, shall not apply to the guidelines issued under 
                this section.

SEC. 10. CIVIL PENALTIES FOR SHERMAN ACT VIOLATIONS.

    (a) Civil Penalty Amendments.--
            (1) Section 1 of the sherman act.--Section 1 of the Sherman 
        Antitrust Act (15 U.S.C. 1) is amended--
                    (A) by striking ``Every'' and inserting ``(a) 
                Every''; and
                    (B) by adding at the end the following
    ``(b)(1) Every person who violates this section shall be liable to 
the United States for a civil penalty of not more than the greater of--
            ``(A) 15 percent of the total United States revenues of the 
        person for the previous calendar year; or
            ``(B) 30 percent of the United States revenues of the 
        person in any part of the trade or commerce related to or 
        targeted by the unlawful conduct under this section during the 
        period of the unlawful conduct.
    ``(2) A civil penalty under this section may be recovered in a 
civil action brought by the United States.''.
            (2) Section 2 of the sherman act.--Section 2 of the Sherman 
        Antitrust Act (15 U.S.C. 2) is amended--
                    (A) by striking ``Every'' and inserting ``(a) 
                Every''; and
                    (B) by adding at the end the following
    ``(b)(1) Every person who violates this section shall be liable to 
the United States for a civil penalty of not more than the greater of--
            ``(A) 15 percent of the total United States revenues of the 
        person for the previous calendar year; or
            ``(B) 30 percent of the United States revenues of the 
        person in any part of the trade or commerce related to or 
        targeted by the unlawful conduct under this section during the 
        period of the unlawful conduct.
    ``(2) A civil penalty under this section may be recovered in a 
civil action brought by the United States.''.
            (3) Federal trade commission act.--Section 5 of the Federal 
        Trade Commission Act (15 U.S.C. 45) is amended by adding at the 
        end the following:
    ``(o)(1) The Commission may commence a civil action in a district 
court of the United States against any person, partnership, or 
corporation for a violation of subsection (a)(1) respecting an unfair 
method of competition that constitutes a violation of sections 1 or 2 
of the Sherman Act (15 U.S.C. 1, 2) and to recover a civil penalty for 
such violation.
    ``(2) In an action under paragraph (1), any person, partnership, or 
corporation found to have violated subsection (a)(1) respecting an 
unfair method of competition that constitutes a violation of section 1 
or 2 of the Sherman Act (15 U.S.C. 1, 2) shall be liable for a civil 
penalty of not more than the greater of--
            ``(A) 15 percent of the total United States revenues of the 
        person, partnership, or corporation for the previous calendar 
        year; or
            ``(B) 30 percent of the United States revenues of the 
        person, partnership, or corporation in any line of commerce 
        related to or targeted by the unlawful conduct described in 
        paragraph (1) during the period of the unlawful conduct.''.
    (b) Rule of Construction.--
            (1) Civil penalties.--The civil penalties provided in 
        subsection (b) of section 1 of the Sherman Act (15 U.S.C. 1), 
        subsection (b) of section 2 of the Sherman Act (15 U.S.C. 2), 
        and subsection (o) of section 5 of the Federal Trade Commission 
        Act (15 U.S.C. 45), as added by subsection (a) of this section, 
        are in addition to, and not in lieu of, any other remedy 
        provided by Federal law, including under--
                    (A) section 4 or 16 of the Clayton Act (15 U.S.C. 
                15, 26); or
                    (B) section 13(b) of the Federal Trade Commission 
                Act (15 U.S.C. 53(b)).
            (2) Authorities.--Nothing in this paragraph may be 
        construed to affect any authority of the Attorney General or 
        the Federal Trade Commission under any other provision of law.

SEC. 11. JOINT CIVIL PENALTY GUIDELINES.

    (a) In General.--Not later than 1 year after the date of enactment 
of this Act, the Attorney General and the Federal Trade Commission 
shall issue joint guidelines reflecting agency policies for determining 
the appropriate amount of a civil penalty to be sought under sections 
1(b) and 2(b) of the Sherman Act (15 U.S.C. 1, 2), section 26A(f) of 
the Clayton Act, and sections 5(o) and 5(p) of the Federal Trade 
Commission Act (15 U.S.C. 45), as added by of this Act, with the goal 
of promoting transparency and crafting remedies for individual 
violations that are effective in deterring future unlawful conduct and 
proportionate to the gravity of the violation.
    (b) Considerations.--In establishing the guidelines described in 
subsection (a), the Attorney General and the Federal Trade Commission 
shall consider the relevant factors to be used for calculating an 
appropriate civil penalty for a particular violation, including--
            (1) the volume of commerce affected;
            (2) the duration and severity of the unlawful conduct;
            (3) the intent of the person undertaking the unlawful 
        conduct;
            (4) the extent to which the unlawful conduct was egregious 
        or a clear violation of the law;
            (5) whether the civil penalty is to be applied in 
        combination with other remedies, including--
                    (A) structural remedies, behavioral conditions, or 
                equitable disgorgement; or
                    (B) other remedies available under section 4, 4A, 
                15, or 16 of the Clayton Act (15 U.S.C. 15, 15a, 25, 
                26) or section 13(b) of the Federal Trade Commission 
                Act (15 U.S.C. 53(b));
            (6) whether the person has previously engaged in the same 
        or similar anticompetitive conduct; and
            (7) whether the person undertook the conduct in violation 
        of a preexisting consent decree or court order.
    (c) Updates.--The Attorney General and the Federal Trade Commission 
shall update the joint guidelines issued under subsection (a), as 
needed to reflect current agency policies and practices, but not less 
frequently than once every 5 years beginning on the date of enactment 
of this Act.
    (d) Public Notice and Comment.--
            (1) Guidelines.--Before issuing guidelines under subsection 
        (a) or subsection (c), the Attorney General and the Federal 
        Trade Commission shall publish proposed guidelines in draft 
        form and provide public notice and opportunity for comment for 
        not less than 60 days after the date on which the guidelines 
        are published.
            (2) Inapplicability of rulemaking provisions.--The 
        provisions of section 553 of title 5, United States Code, shall 
        not apply to the guidelines issued under this section.

SEC. 12. FEDERAL TRADE COMMISSION LITIGATION AUTHORITY.

    Section 16(a)(2) of the Federal Trade Commission Act (15 U.S.C. 
56(a)(2)) is amended--
            (1) in subparagraph (D), by striking ``or'' at the end;
            (2) in subparagraph (E)--
                    (A) by moving the margins 2 ems to the left; and
                    (B) by striking the semicolon and inserting ``; 
                or''; and
            (3) by inserting after subparagraph (E) the following:
                    ``(F) to recover civil penalties under section 5(o) 
                of this Act;''.

SEC. 13. MARKET DEFINITION.

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

SEC. 14. LIMITATIONS ON IMPLIED IMMUNITY FROM THE ANTITRUST LAWS.

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

SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated for fiscal year 2022--
            (1) $484,500,000 for the Antitrust Division of the 
        Department of Justice; and
            (2) $651,000,000 for the Federal Trade Commission.

SEC. 16. WHISTLEBLOWER PROTECTIONS.

    (a) Protections for Civil Whistleblowers.--The Clayton Act (15 
U.S.C. 12 et seq.) is amended by inserting after section 27 (15 U.S.C. 
26b) the following:

``SEC. 27A. ANTI-RETALIATION PROTECTION FOR CIVIL WHISTLEBLOWERS.

    ``(a) Whistleblower Protections for Employees, Contractors, 
Subcontractors, and Agents.--
            ``(1) In general.--No employer may discharge, demote, 
        suspend, threaten, harass, or in any other manner discriminate 
        against a covered individual in the terms and conditions of 
        employment of the covered individual because of any lawful act 
        done by the covered individual--
                    ``(A) to provide or cause to be provided to the 
                Federal Government or a person with supervisory 
                authority over the covered individual (or such other 
                person working for the employer who has the authority 
                to investigate, discover, or terminate misconduct) 
                information relating to any violation of, or any act or 
                omission the covered individual reasonably believes to 
                be a violation of, the applicable antitrust laws; or
                    ``(B) to cause to be filed, testify in, participate 
                in, or otherwise assist a Federal Government 
                investigation or a Federal Government proceeding filed 
                or about to be filed (with any knowledge of the 
                employer) relating to any violation of, or any act or 
                omission the covered individual reasonably believes to 
                be a violation of, the applicable antitrust laws.
            ``(2) Limitation on protections.--Paragraph (1) shall not 
        apply to any covered individual if--
                    ``(A) the covered individual planned and initiated 
                a violation or attempted violation of the applicable 
                antitrust laws;
                    ``(B) the covered individual planned and initiated 
                a violation or attempted violation of a criminal law in 
                conjunction with a violation or attempted violation of 
                the applicable antitrust laws; or
                    ``(C) the covered individual planned and initiated 
                an obstruction or attempted obstruction of an 
                investigation by the Federal Government of a violation 
                of the applicable antitrust laws.
            ``(3) Definitions.--In this section:
                    ``(A) Applicable antitrust laws.--The term 
                `applicable antitrust laws' means section 1, 2, or 3 of 
                the Sherman Act (15 U.S.C. 1, 2, and 3) or section 5 of 
                the Federal Trade Commission Act (15 U.S.C. 45) to the 
                extent that such section applies to unfair methods of 
                competition.
                    ``(B) Covered individual.--The term `covered 
                individual' means an employee, contractor, 
                subcontractor, or agent of an employer.
                    ``(C) Employer.--The term `employer' means a 
                person, or any officer, employee, contractor, 
                subcontractor, or agent of such person.
                    ``(D) Federal government.--The term `Federal 
                Government' means--
                            ``(i) a Federal regulatory or law 
                        enforcement agency; or
                            ``(ii) any Member of Congress or committee 
                        of Congress.
                    ``(E) Person.--The term `person' has the same 
                meaning as in subsection (a) of the first section of 
                the Clayton Act (15 U.S.C. 12(a)).
    ``(b) Enforcement Action.--
            ``(1) In general.--A covered individual who alleges 
        discharge or other discrimination by any employer in violation 
        of subsection (a) may seek relief under subsection (c) by--
                    ``(A) filing a complaint with the Secretary of 
                Labor; or
                    ``(B) if the Secretary of Labor has not issued a 
                final decision within 180 days of the filing of the 
                complaint and there is no showing that such delay is 
                due to the bad faith of the claimant, bringing an 
                action at law or equity for de novo review in the 
                appropriate district court of the United States, which 
                shall have jurisdiction over such an action without 
                regard to the amount in controversy.
            ``(2) Procedure.--
                    ``(A) In general.--A complaint filed with the 
                Secretary of Labor under paragraph (1)(A) shall be 
                governed under the rules and procedures set forth in 
                section 42121(b) of title 49, United States Code.
                    ``(B) Exception.--Notification made under section 
                42121(b)(1) of title 49, United States Code, shall be 
                made to any individual named in the complaint and to 
                the employer.
                    ``(C) Burdens of proof.--An action brought under 
                paragraph (1)(B) shall be governed by the legal burdens 
                of proof set forth in section 42121(b) of title 49, 
                United States Code.
                    ``(D) Statute of limitations.--A complaint under 
                paragraph (1)(A) shall be filed with the Secretary of 
                Labor not later than 180 days after the date on which 
                the violation of this section occurs.
                    ``(E) Civil actions to enforce.--If a person fails 
                to comply with an order or preliminary order issued by 
                the Secretary of Labor pursuant to the procedures set 
                forth in section 42121(b) of title 49, United States 
                Code, the Secretary of Labor or the person on whose 
                behalf the order was issued may bring a civil action to 
                enforce the order in the district court of the United 
                States for the judicial district in which the violation 
                occurred.
    ``(c) Remedies.--
            ``(1) In general.--A covered individual prevailing in any 
        action under subsection (b)(1) shall be entitled to all relief 
        necessary to make the covered individual whole.
            ``(2) Compensatory damages.--Relief for any action under 
        paragraph (1) shall include--
                    ``(A) reinstatement with the same seniority status 
                that the covered individual would have had, but for the 
                discrimination;
                    ``(B) the amount of back pay, with interest; and
                    ``(C) compensation for any special damages 
                sustained as a result of the discrimination including 
                litigation costs, expert witness fees, and reasonable 
                attorney's fees.
    ``(d) Rights Retained by Whistleblowers.--Nothing in this section 
shall be deemed to diminish the rights, privileges, or remedies of any 
covered individual under any Federal or State law, or under any 
collective bargaining agreement.''.
    (b) Whistleblower Reward.--The Antitrust Criminal Penalty 
Enhancement and Reform Act of 2004 (15 U.S.C. 1 note) is amended by 
inserting after section 216 the following:

``SEC. 217. CRIMINAL ANTITRUST WHISTLEBLOWER INCENTIVES.

    ``(a) Definitions.--In this section the following definitions shall 
apply:
            ``(1) Antitrust laws.--The term `antitrust laws' means 
        section 1 or 3 of the Sherman Act (15 U.S.C. 1 and 3).
            ``(2) Covered enforcement action.--The term `covered 
        enforcement action' means any criminal action brought by the 
        Attorney General under the antitrust laws that results in 
        criminal fines exceeding $1,000,000.
            ``(3) Original information.--The term `original 
        information' means information that--
                    ``(A) is derived from the independent knowledge or 
                analysis of a whistleblower;
                    ``(B) is not known to the Attorney General or the 
                Department of Justice from any other source, unless the 
                whistleblower is the original source of the 
                information; and
                    ``(C) is not exclusively derived from an allegation 
                made in a judicial or administrative hearing, in a 
                governmental report, hearing, audit, or investigation, 
                or from the news media, unless the whistleblower is a 
                source of the information.
            ``(4) Whistleblower.--The term `whistleblower' means any 
        individual who provides, or 2 or more individuals acting 
        jointly who provide, information relating to a violation of the 
        antitrust laws to the Department of Justice, in a manner 
        established by the Department of Justice.
    ``(b) Awards.--
            ``(1) In general.--In a covered enforcement action, the 
        Attorney General, subject to subsection (c), may pay an award 
        or awards to 1 or more whistleblowers who voluntarily provided 
        original information to the Department of Justice that led to 
        the successful enforcement of the covered enforcement action, 
        in an amount equal to not more than 30 percent, in total, of 
        what has been collected of the criminal fine imposed in the 
        covered enforcement action under the antitrust laws.
            ``(2) Payment.--Any amount paid under paragraph (1) shall 
        be paid from the criminal fine collected in the covered 
        enforcement action.
    ``(c) Determination of Amount of Award; Denial of Award.--
            ``(1) Determination of amount of award.--
                    ``(A) Discretion.--The determination of the amount 
                of an award made under subsection (b) shall be in the 
                discretion of the Attorney General.
                    ``(B) Criteria.--In determining the amount of an 
                award made under subsection (b), the Attorney General 
                shall take into consideration--
                            ``(i) the significance of the information 
                        provided by the whistleblower to the success of 
                        the covered enforcement action;
                            ``(ii) the degree of assistance and 
                        cooperation provided by the whistleblower in a 
                        covered enforcement action;
                            ``(iii) the interest of the Department of 
                        Justice in deterring criminal violations of the 
                        antitrust laws by making awards to 
                        whistleblowers who provide information that 
                        lead to the successful covered enforcement 
                        actions; and
                            ``(iv) such additional relevant factors as 
                        the Attorney General may establish.
            ``(2) Denial of award.--No award under subsection (b) shall 
        be made--
                    ``(A) to any whistleblower who is, or was at the 
                time the whistleblower acquired the original 
                information submitted to the Commission, a member, 
                officer, or employee of--
                            ``(i) any branch, agency, or 
                        instrumentality of the Federal Government; or
                            ``(ii) any law enforcement organization;
                    ``(B) to any whistleblower who is convicted of a 
                criminal violation related to the covered enforcement 
                action for which the whistleblower otherwise could 
                receive an award under this section;
                    ``(C) to any whistleblower who was an originator or 
                leader of or who coerced any other party to participate 
                in the activity giving rise to liability under the 
                antitrust laws in the covered enforcement action for 
                which the whistleblower otherwise could receive an 
                award under this section;
                    ``(D) to any whistleblower who fails to respond 
                fully and truthfully to all inquiries of the Department 
                of Justice relating to the original information or 
                intentionally withholds information relating to the 
                original information;
                    ``(E) to any whistleblower who commits, 
                participates in, or attempts to commit or participate 
                in any crimes after disclosing the original information 
                to the Department of Justice; or
                    ``(F) to any whistleblower who fails to submit 
                information to the Department of Justice in such form 
                as the Department may require.
    ``(d) Representation.--
            ``(1) Permitted representation.--Any whistleblower who 
        makes a claim for an award under subsection (b) may be 
        represented by counsel.
            ``(2) Required representation.--Any whistleblower who makes 
        a claim for an award under subsection (b) may be represented by 
        counsel.
                    ``(A) In general.--Any whistleblower who 
                anonymously makes a claim for an award under subsection 
                (b) shall be represented by counsel if the 
                whistleblower anonymously submits the information upon 
                which the claim is based.
                    ``(B) Disclosure of identity.--Prior to the payment 
                of an award, a whistleblower shall disclose the 
                identity of the whistleblower and provide such other 
                information as the Attorney General or the Department 
                of Justice may require, directly or through counsel for 
                the whistleblower.
    ``(e) Appeals.--Any determination made under this section, 
including whether, to whom, or in what amount to make awards, shall be 
in the discretion of the Attorney General. Any such determination, 
except the determination of the amount of an award if the award was 
made in accordance with subsection (b), may be appealed to the 
appropriate court of appeals of the United States not more than 30 days 
after the determination is issued by the Attorney General. The court 
shall review the determination made by the Attorney General in 
accordance with section 706 of title 5.''.

SEC. 17. PREJUDGMENT INTEREST.

    Section 4 of the Clayton Act (15 U.S.C. 15) is amended by striking 
subsection (a) and inserting the following:
    ``(a) Except as provided in subsection (b), any person who shall be 
injured in his business or property by reason of anything forbidden in 
the antitrust laws 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. 18. ADDITIONAL REMEDIES; RULES OF CONSTRUCTION.

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