[Congressional Record Volume 154, Number 130 (Friday, August 1, 2008)]
[Senate]
[Pages S8041-S8044]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN:
  S. 3434. A bill to combat organized crime involving the illegal 
acquisition of retail goods for the purpose of selling those illegally 
obtained goods through physical and online retail marketplaces; to the 
Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I rise to discuss legislation that I am 
introducing today, the it Combating Organized Retail Crime Act of 2008.
  This bill addresses a persistent and growing problem that costs 
retailers billions of dollars and poses serious health and safety risks 
for consumers. Organized retail crime involves the coordinated theft of 
large numbers of items from retail stores with the intent to resell 
those items. Typically, crime organizations hire teams of professional 
shoplifters to steal over-the-counter drugs, health and beauty aids, 
designer clothing, razor blades, baby formula, electronic devices and 
other items from retail stores. Using sophisticated means for evading 
anti-theft measures, and often the assistance of employees at stores, 
the thieves target 10-15 stores per day. They steal thousands of 
dollars worth of items from each store and deliver the items to a 
processing and storage location. There, teams of workers sort the 
items, remove anti-theft tracking devices, and remove labels that 
identify the items with a particular store. In some instances, they 
change the expiration date, replace the label with that of a more 
expensive product, or dilute the product and repackage the modified 
contents in seemingly-authentic packaging. The items are then stored in 
a warehouse, often under poor conditions that result in the 
deterioration of the contents.
  Organized retail crime rings typically sell their stolen merchandise 
in different markets, including flea markets, swap-meets, and online 
auction sites. Online sales are of particular concern, since the 
internet reaches a worldwide market and allows sellers to operate 
anonymously and maximize return. A growing number of multi-million 
dollar organized retail crime cases involve internet sales. For 
example, in Florida recently law enforcement agents arrested 20 people 
in a $100 million case involving the sale of stolen health and beauty 
aids on an online auction site and at flea markets.
  Organized retail crime has a variety of harmful effects. Retailers 
and the FBI estimate that it costs retailers billions of dollars in 
revenues and costs states hundreds of millions of dollars in sales tax 
revenues. With respect to certain products, such as baby formula and 
diabetic test strips, improper storage and handling by thieves creates 
a serious public safety risk when the products are resold. The proceeds 
of organized retail crime are often used to finance other forms of 
criminal behavior, including gang activity and drug trafficking.
  The Combating Organized Retail Crime Act would address this problem 
in several ways. First, it would toughen the criminal code's treatment 
of organized retail crime by refining certain offenses to capture 
conduct that is currently being committed by individuals engaged in 
organized retail crime, and by requiring the U.S. Sentencing Commission 
to consider relevant sentencing guideline enhancements.
  Second, the bill would require physical retail marketplaces, such as 
flea markets, and online retail marketplaces, such as auction websites, 
to review the account of a seller and file a suspicious activity report 
with the Justice Department when presented with documentary evidence 
showing that the seller is selling items that were illegally obtained. 
If the physical or online retail marketplace is presented

[[Page S8042]]

with clear and convincing evidence that the seller is engaged in such 
illegal activity, it must terminate the activities of the seller. This 
requirement will lead to greater cooperation between retail 
marketplaces, retailers and law enforcement, and will result in an 
increased number of organized retail crime prosecutions.
  Third, the bill would require high-volume sellers on online auction 
sites (meaning sellers that have obtained at least $10,000 in annual 
gross revenues on the site) to display a physical address, post office 
box, or private mail box registered with a commercial mail receiving 
agency. This requirement will help online buyers get in touch with 
sellers, and assist law enforcement agents who wish to identify people 
who may be selling stolen goods online. It is analogous to a provision 
in the federal CAN-SPAM Act, which also requires persons who send mass 
emails to disclose their physical addresses.
  This legislation has broad support in the retail industry in my home 
state of Illinois and nationwide. It is supported by the Illinois 
Retail Merchants Association, the National Retail Federation, the 
Retail Industry Leaders Association, the Food Marketing Institute, the 
National Association of Chain Drug Stores, and the Coalition to Stop 
Organized Retail Crime, whose members include such retail giants as 
Home Depot, Target, Wal-Mart, Safeway, Walgreens, and Macy's.
  In summary, the Combating Organized Retail Crime Act addresses a 
serious problem that hurts businesses that are struggling to survive in 
a weak economy, and that harms consumers who unknowingly purchase 
stolen items that have been subjected to tampering. It heightens the 
penalties for organized retail crime, shuts down criminals who are 
selling stolen goods, and places valuable information about illegal 
activity into the hands of law enforcement. This bill is a big step 
forward in the fight against a nationwide problem, and I urge my 
colleagues to support it.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3434

       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 ``Combating Organized Retail 
     Crime Act of 2008''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Organized retail crime involves the coordinated 
     acquisition of large volumes of retail merchandise by theft, 
     embezzlement, fraud, false pretenses, or other illegal means 
     from commercial entities engaged in interstate commerce, for 
     the purpose of selling or distributing such illegally 
     obtained items in the stream of commerce. Organized retail 
     crime is a growing problem nationwide that costs American 
     companies and consumers billions of dollars annually and that 
     has a substantial and direct effect upon interstate commerce.
       (2) The illegal acquisition and black-market sale of 
     merchandise by persons engaged in organized retail crime 
     result in an estimated annual loss of hundreds of millions of 
     dollars in sales and income tax revenues to State and local 
     governments.
       (3) The illegal acquisition, unsafe tampering and storage, 
     and unregulated redistribution of consumer products such as 
     baby formula, over-the-counter drugs, and other items by 
     persons engaged in organized retail crime pose a health and 
     safety hazard to consumers nationwide.
       (4) Investigations into organized retail crime have 
     revealed that the illegal income resulting from such crime 
     often benefits persons and organizations engaged in other 
     forms of criminal activity, such as drug trafficking and gang 
     activity.
       (5) Items obtained through organized retail crime are 
     resold in a variety of different marketplaces, including flea 
     markets, swap meets, open-air markets, and Internet auction 
     websites. Increasingly, persons engaged in organized retail 
     crime use Internet auction websites to resell illegally 
     obtained items. The Internet offers such sellers a worldwide 
     market and a degree of anonymity that physical marketplace 
     settings do not offer.

     SEC. 3. OFFENSES RELATED TO ORGANIZED RETAIL CRIME.

       (a) Transportation of Stolen Goods.--The first undesignated 
     paragraph of section 2314 of title 18, United States Code, is 
     amended by inserting after ``more,'' the following: ``or, 
     during any 12-month period, of an aggregate value of $5,000 
     or more during that period,''.
       (b) Sale or Receipt of Stolen Goods.--The first 
     undesignated paragraph of section 2315 of title 18, United 
     States Code, is amended by inserting after ``$5,000 or 
     more,'' the following: ``or, during any 12-month period, of 
     an aggregate value of $5,000 or more during that period,''.
       (c) Fraud in Connection With Access Devices.--Section 
     1029(e)(1) of title 18, United States Code, is amended by 
     inserting ``Universal Product Code label,'' after ``code,''.
       (d) Review and Amendment of Federal Sentencing Guidelines 
     for Offenses Related to Organized Retail Crime.--
       (1) Review and amendment.--
       (A) In general.--The United States Sentencing Commission, 
     pursuant to its authority under section 994 of title 28, 
     United States Code, and in accordance with this subsection, 
     shall review and, if appropriate, amend the Federal 
     sentencing guidelines (including its policy statements) 
     applicable to persons convicted of offenses involving 
     organized retail crime, which is the coordinated acquisition 
     of large volumes of retail merchandise by theft, 
     embezzlement, fraud, false pretenses, or other illegal means 
     from commercial entities engaged in interstate commerce for 
     the purpose of selling or distributing such illegally 
     obtained items in the stream of commerce.
       (B) Offenses.--Offenses referred to in subparagraph (A) may 
     include offenses contained in--
       (i) sections 1029, 2314, and 2315 of title 18, United 
     States Code; or
       (ii) any other relevant provision of the United States 
     Code.
       (2) Requirements.--In carrying out the requirements of this 
     subsection, the United States Sentencing Commission shall--
       (A) ensure that the Federal sentencing guidelines 
     (including its policy statements) reflect--
       (i) the serious nature and magnitude of organized retail 
     crime; and
       (ii) the need to deter, prevent, and punish offenses 
     involving organized retail crime;
       (B) consider the extent to which the Federal sentencing 
     guidelines (including its policy statements) adequately 
     address offenses involving organized retail crime to 
     sufficiently deter and punish such offenses;
       (C) maintain reasonable consistency with other relevant 
     directives and sentencing guidelines;
       (D) account for any additional aggravating or mitigating 
     circumstances that might justify exceptions to the generally 
     applicable sentencing ranges; and
       (E) consider whether to provide a sentencing enhancement 
     for those convicted of conduct involving organized retail 
     crime, where such conduct involves--
       (i) a threat to public health and safety, including 
     alteration of an expiration date or of product ingredients;
       (ii) theft, conversion, alteration, or removal of a product 
     label;
       (iii) a second or subsequent offense; or
       (iv) the use of advanced technology to acquire retail 
     merchandise by means of theft, embezzlement, fraud, false 
     pretenses, or other illegal means.

     SEC. 4. SALES OF ILLEGALLY OBTAINED ITEMS IN PHYSICAL OR 
                   ONLINE RETAIL MARKETPLACES.

       (a) In General.--Chapter 113 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``SEC. 2323. ONLINE RETAIL MARKETPLACES.

       ``(a) Definitions.--As used in this section, the following 
     definitions shall apply:
       ``(1) High volume seller.--The term `high volume seller' 
     means a user of an online retail marketplace who, in any 
     continuous 12-month period during the previous 24 months, has 
     entered into--
       ``(A) multiple discrete sales or transactions resulting in 
     the accumulation of an aggregate total of $20,000 or more in 
     gross revenues; or
       ``(B) 200 or more discrete sales or transactions resulting 
     in the accumulation of an aggregate total of $10,000 or more 
     in gross revenues.
       ``(2) Internet site.--The term `Internet site' means a 
     location on the Internet that is accessible at a specific 
     Internet domain name or address under the Internet Protocol 
     (or any successor protocol), or that is identified by a 
     uniform resource locator.
       ``(3) Online retail marketplace.--The term `online retail 
     marketplace' means an Internet site where users other than 
     the operator of the Internet site can enter into transactions 
     with each other for the sale or distribution of goods or 
     services, and in which--
       ``(A) such goods or services are promoted through inclusion 
     in search results displayed within the Internet site;
       ``(B) the operator of the Internet site--
       ``(i) has the contractual right to supervise the activities 
     of users with respect to such goods or services; or
       ``(ii) has a financial interest in the sale of such goods 
     or services; and
       ``(C) in any continuous 12-month period during the previous 
     24 months, users other than the operator of the Internet site 
     collectively have entered into--
       ``(i) multiple discrete transactions for the sale of goods 
     or services aggregating a total of $500,000 or more in gross 
     revenues; or
       ``(ii) 1,000 or more discrete transactions for the sale of 
     goods or services aggregating a total of $250,000 or more in 
     gross revenues.
       ``(4) Operator of an online retail marketplace.--The term 
     `operator of an online retail marketplace' means a person or 
     entity that--
       ``(A) operates or controls an online retail marketplace; 
     and

[[Page S8043]]

       ``(B) makes the online retail marketplace available for 
     users to enter into transactions with each other on that 
     marketplace for the sale or distribution of goods or 
     services.
       ``(5) Operator of a physical retail marketplace.--The term 
     `operator of a physical retail marketplace' means a person or 
     entity that rents or otherwise makes available a physical 
     retail marketplace to transient vendors to conduct business 
     for the sale of goods, or services related to such goods.
       ``(6) Physical retail marketplace.--The term `physical 
     retail marketplace' may include a flea market, indoor or 
     outdoor swap meet, open air market, or other similar 
     environment, and means a venue or event in which physical 
     space is made available not more than 4 days per week by an 
     operator of a physical retail marketplace as a temporary 
     place of business for transient vendors to conduct business 
     for the sale of goods, or services related to such goods; and
       ``(A) in which in any continuous 12-month period during the 
     preceding 24 months, there have been 10 or more days on which 
     5 or more transient vendors have conducted business at the 
     venue or event; and
       ``(B) does not mean and shall not apply to an event which 
     is organized and conducted for the exclusive benefit of any 
     community chest, fund, foundation, association, or 
     corporation organized and operated for religious, 
     educational, or charitable purposes, provided that no part of 
     any admission fee or parking fee charged vendors or 
     prospective purchasers, and no part of the gross receipts or 
     net earnings from the sale or exchange of goods or services, 
     whether in the form of a percentage of the receipts or 
     earnings, salary, or otherwise, inures to the benefit of any 
     private shareholder or person participating in the 
     organization or conduct of the event.
       ``(7) Structuring.--The term `structuring' means to 
     knowingly conduct, or attempt to conduct, alone, or in 
     conjunction with or on behalf of 1 or more other persons, 1 
     or more transactions in currency, in any amount, in any 
     manner, with the purpose of evading categorization as a 
     physical retail marketplace, an online retail marketplace, or 
     a high volume seller.
       ``(8) Temporary place of business.--The term `temporary 
     place of business' means any physical space made open to the 
     public, including but not limited to a building, part of a 
     building, tent or vacant lot, which is temporarily occupied 
     by 1 or more persons or entities for the purpose of making 
     sales of goods, or services related to those goods, to the 
     public. A place of business is not temporary with respect to 
     a person or entity if that person or entity conducts business 
     at the place and stores unsold goods there when it is not 
     open for business.
       ``(9) Transient vendor.--The term `transient vendor' means 
     any person or entity that, in the usual course of business, 
     transports inventory, stocks of goods, or similar tangible 
     personal property to a temporary place of business for the 
     purpose of entering into transactions for the sale of such 
     property.
       ``(10) User.--The term `user' means a person or entity that 
     accesses an online retail marketplace for the purpose of 
     entering into transactions for the sale or distribution of 
     goods or services.
       ``(11) Valid physical postal address.--The term `valid 
     physical postal address' means--
       ``(A) a current street address, including the city, State, 
     and Zip code;
       ``(B) a Post Office box that has been registered with the 
     United States Postal Service; or
       ``(C) a private mailbox that has been registered with a 
     commercial mail receiving agency that is established pursuant 
     to United States Postal Service regulations.
       ``(b) Safeguards Against Sales of Illegally-Obtained 
     Items.--
       ``(1) Duties of operators of physical retail marketplaces 
     and online retail marketplaces to conduct account reviews and 
     file suspicious activity reports.--In the event that an 
     operator of a physical or online retail marketplace is 
     presented with documentary evidence showing that a transient 
     vendor of the physical retail marketplace, a user of the 
     online retail marketplace, or a director, officer, employee, 
     or agent of such transient vendor or user, has used or is 
     using the retail marketplace to sell or distribute items that 
     were stolen, embezzled, or obtained by fraud, false pretenses 
     or other illegal means, or has engaged in or is engaging in 
     structuring, the operator shall--
       ``(A) not later than 15 days after receiving such 
     evidence--
       ``(i) file a suspicious activity report with the Attorney 
     General of the United States; and
       ``(ii) not later than 5 days after filing the report, 
     notify any person or entity that presented the documentary 
     evidence that the operator filed the report; and
       ``(B)(i) initiate a review of the account of such transient 
     vendor or user for evidence of illegal activity; and
       ``(ii) as soon as possible, but not later than 45 days 
     after receiving such evidence--
       ``(I) complete this review; and
       ``(II) submit the results of such account review to the 
     Attorney General.
       ``(2) Duties of operators of physical retail marketplaces 
     and online retail marketplaces to terminate sales activity.--
       ``(A) In general.--If an operator of a physical retail 
     marketplace or an online retail marketplace reasonably 
     determines that, based on the documentary evidence presented 
     to it or the account review conducted by it under paragraph 
     (1), there is clear and convincing evidence that a transient 
     vendor of the physical retail marketplace, a user of the 
     online retail marketplace, or a director, officer, employee 
     or agent of such transient vendor or user, has used or is 
     using the retail marketplace to sell or distribute items that 
     were stolen, embezzled, or obtained by fraud, false 
     pretenses, or other illegal means, or has engaged in or is 
     engaging in structuring, the operator shall, not sooner than 
     21 days and not later than 45 days after submitting the 
     results of the account review to the Attorney General 
     pursuant to paragraph (1), either--
       ``(i) terminate the ability of the transient vendor to 
     conduct business at the physical retail marketplace or 
     terminate the ability of the user to conduct transactions on 
     the online retail marketplace, and notify the Attorney 
     General of such action; or
       ``(ii)(I) request that the transient vendor or user present 
     documentary evidence that the operator reasonably determines 
     to be clear and convincing showing that the transient vendor 
     or user has not used the retail marketplace to sell or 
     distribute items that were stolen, embezzled, or obtained by 
     fraud, false pretenses, or other illegal means, or has not 
     engaged in or is not engaging in structuring; and
       ``(II)(aa) if the transient vendor or user fails to present 
     such information within 45 days of such request, terminate 
     the ability of the transient vendor to conduct business at 
     the physical retail marketplace or terminate the ability of 
     the user to conduct transactions on the online retail 
     marketplace, and notify the Attorney General of such action; 
     or
       ``(bb) if the transient vendor or user presents such 
     information within 45 days, then the operator shall report 
     such information to the Attorney General and notify the 
     transient vendor or user that the operator will not terminate 
     the activities of the transient vendor or user.
       ``(B) Attorney general authorization.--The Attorney General 
     or a designee may, with respect to the timing of the 
     operator's actions pursuant to this paragraph, authorize the 
     operator in writing to take such action prior to 21 days 
     after submitting the results of the account review to the 
     Attorney General or direct the operator in writing and for 
     good cause to delay such action to a date later than 45 days 
     after submitting the results of the account review.
       ``(3) Documentary evidence.--The documentary evidence 
     referenced in paragraphs (1) or (2)--
       ``(A) shall refer to 1 or more specific items, individuals, 
     entities or transactions allegedly involved in theft, 
     embezzlement, fraud, false pretenses, or other illegal 
     activity; and
       ``(B) shall be--
       ``(i) video recordings;
       ``(ii) audio recordings;
       ``(iii) sworn affidavits;
       ``(iv) financial, accounting, business, or sales records;
       ``(v) records or transcripts of phone conversations;
       ``(vi) documents that have been filed in a Federal or State 
     court proceeding; or
       ``(vii) signed reports to or from a law enforcement agency.
       ``(4) Retention of records.--
       ``(A) Retail marketplaces.--Each operator of a physical 
     retail marketplace and each operator of an online retail 
     marketplace shall maintain--
       ``(i) a record of all documentary evidence presented to it 
     pursuant to paragraph (1) for 3 years from the date the 
     operator received the evidence;
       ``(ii) a record of the results of all account reviews 
     conducted pursuant to paragraph (1), and any supporting 
     documentation, for 3 years from the date of the review; and
       ``(iii) a copy of any suspicious activity report filed with 
     the Attorney General pursuant to this subsection, and the 
     original supporting documentation concerning any report that 
     it files, for 3 years from the date of the filing.
       ``(B) Online retail marketplace.--Each operator of an 
     online retail marketplace shall maintain, for 3 years after 
     the date a user becomes a high volume seller, the name, 
     telephone number, e-mail address, valid physical postal 
     address, and any other identification information that the 
     operator receives about the high volume seller.
       ``(5) Confidentiality of reports.--No operator of a 
     physical retail marketplace or online retail marketplace, and 
     no director, officer, employee or agent of such operator, may 
     notify any individual or entity that is the subject of a 
     suspicious activity report filed pursuant to paragraph (1), 
     or of an account review performed pursuant to paragraph (1), 
     of the fact that the operator filed such a report or 
     performed such an account review, or of any information 
     contained in the report or account review.
       ``(6) High volume sellers.--
       ``(A) Valid postal address.--An operator of an online 
     retail marketplace shall require each high volume seller to 
     display a valid physical postal address whenever other 
     information about the items or services being sold by the 
     high volume seller is displayed on the online retail 
     marketplace. Such valid physical postal address must be 
     displayed in a format clearly visible to the average 
     consumer.

[[Page S8044]]

       ``(B) Failure to provide.--In the event that a high volume 
     seller has failed to display a valid physical postal address 
     as required in this paragraph, the operator of the online 
     retail marketplace shall--
       ``(i) within 15 days notify the user of its duty to display 
     a valid physical postal address; and
       ``(ii) if 45 days after providing this initial notification 
     the user still has not displayed a valid physical postal 
     address, shall--

       ``(I) terminate the ability of the user to conduct 
     transactions on marketplace; and
       ``(II) file within 15 days a suspicious activity report 
     with the Attorney General of the United States.

       ``(7) Contents of suspicious activity reports.--A 
     suspicious activity report submitted by an operator to the 
     Attorney General pursuant to paragraph (1) or (6) shall 
     contain the following information:
       ``(A) The name, address, telephone number, and e-mail 
     address of the individual or entity that is the subject of 
     the report, to the extent known.
       ``(B) Any other information that is in the possession of 
     the operator filing the report regarding the identification 
     of the individual or entity that is the subject of the 
     report.
       ``(C) A copy of the documentary evidence and other 
     information that led to the filing of the report pursuant to 
     paragraph (1) or (6).
       ``(D) A detailed description of the results of the account 
     review conducted pursuant to paragraph (1).
       ``(E) Such other information as the Attorney General may by 
     regulation prescribe.
       ``(c) Voluntary Reports.--Nothing in this section prevents 
     an operator of a physical retail marketplace or online retail 
     marketplace from voluntarily reporting to a Federal, State, 
     or local government agency any suspicious activity that such 
     operator believes is relevant to the possible violation of 
     any law or regulation, provided that the operator also 
     complies with the requirements of this section.
       ``(d) Structuring.--No individual or entity shall engage in 
     structuring as defined in this section.
       ``(e) Enforcement by Attorney General.--
       ``(1) In general.--Any individual or entity who knowingly 
     commits a violation of, or knowingly fails to comply with the 
     requirements specified in, paragraph (1), (2), (4), (5), (6), 
     or (7) of subsection (b), or subsection (d), shall be liable 
     to the United States Government for a civil penalty of not 
     more than $10,000 per violation.
       ``(2) False statements.--
       ``(A) Intent to influence an operator.--Any person who 
     knowingly makes any material false or fictitious statement or 
     representation with the intent to influence an operator of a 
     physical retail marketplace or an operator of an online 
     retail marketplace to file a suspicious activity report under 
     subsection (b) shall be liable to the United States 
     Government for a civil penalty of not more than $10,000 per 
     violation.
       ``(B) Suspicious activity report.--Any person who knowingly 
     and willfully makes any material false or fictitious 
     statement or representation in any suspicious activity report 
     required under subsection (b) may, upon conviction thereof, 
     be subject to liability under section 1001.
       ``(f) Enforcement by States.--
       ``(1) Civil action.--In any case in which the attorney 
     general of a State has reason to believe that an interest of 
     the residents of that State has been or is threatened or 
     adversely affected by any person or entity who has committed 
     or is committing a violation of this section, the attorney 
     general, official, or agency of the State, as parens patriae, 
     may bring a civil action on behalf of the residents of the 
     State in a district court of the United States of appropriate 
     jurisdiction--
       ``(A) to enjoin further violation of this section by the 
     defendant;
       ``(B) to obtain damages on behalf of the residents of the 
     State in an amount equal to the actual monetary loss suffered 
     by such residents; or
       ``(C) to impose civil penalties in the amounts specified in 
     subsection (e).
       ``(2) Written notice.--
       ``(A) In general.--The State shall serve prior written 
     notice of any civil action under paragraph (1) upon the 
     Attorney General of the United States, including a copy of 
     its complaint, except that if it is not feasible for the 
     State to provide such prior notice, the State shall serve 
     such notice immediately upon instituting such action.
       ``(B) Attorney general action.--Upon receiving a notice 
     respecting a civil action under subparagraph (A), the 
     Attorney General of the United States shall have the right--
       ``(i) to intervene in such action;
       ``(ii) upon so intervening, to be heard on all matters 
     arising therein; and
       ``(iii) to file petitions for appeal.
       ``(3) State powers preserved.--For purposes of bringing any 
     civil action under this subsection, nothing in this chapter 
     shall prevent an attorney general of a State from exercising 
     the powers conferred on the attorney general by the laws of 
     such State to conduct investigations or to administer oaths 
     or affirmations or to compel the attendance of witnesses or 
     the production of documentary and other evidence.
       ``(4) Pending federal action.--Whenever a civil action has 
     been instituted by the Attorney General of the United States 
     for violation of any rule prescribed under subsection (e), no 
     State may, during the pendency of such action instituted by 
     the Attorney General of the United States, institute a civil 
     action under this subsection against any defendant named in 
     the complaint in such action for any violation alleged in 
     such complaint.
       ``(5) Jurisdiction.--
       ``(A) In general.--Any civil action brought under this 
     subsection in a district court of the United States may be 
     brought in the district in which the defendant is found, is 
     an inhabitant, or transacts business or wherever venue is 
     proper under section 1391 of title 28.
       ``(B) Process.--Process in an action under this subsection 
     may be served in any district in which the defendant is an 
     inhabitant or in which the defendant may be found.
       ``(g) No Private Right of Action.--Nothing in this section 
     shall be interpreted to authorize a private right of action 
     for a violation of any provision of this section, or a 
     private right of action under any other provision of Federal 
     or State law to enforce a violation of this section.''.
       (b) Chapter Analysis.--The chapter analysis for chapter 113 
     of title 18, United States Code, is amended by inserting 
     after the item for section 2322 the following:

``2323. Online retail marketplaces.''.

     SEC. 5. NO PREEMPTION OF STATE LAW.

       No provision of this Act, including any amendment made by 
     this Act, shall be construed as indicating an intent on the 
     part of Congress to occupy the field in which that provision 
     or amendment operates, including criminal penalties, to the 
     exclusion of any State law on the same subject matter that 
     would otherwise be within the authority of the State, unless 
     there is a positive conflict between that provision or 
     amendment and that State law so that the 2 cannot 
     consistently stand together.

     SEC. 6. EFFECTIVE DATE.

       The amendments made by this Act take effect 120 days after 
     the date of the enactment of this Act.
                                 ______