,,ii #aafth ,,congress #ast ,session ,s4 #cjg ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,january #ca1 #bjai,ms4 ,klobuchar 7for herself1 ,mr4 ,markey1 ,mr4 ,blumenthal1 and ,mr4 ,booker7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to amend the ,clayton ,act to modify the standard for an unlawful acquisition1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,consolidation ,prevention and ,competition ,promotion ,act of #bjai4 #b4 ,findings and purposes 7a7 ,findings ,congress finds that-- 7#a7 competitive markets are critical to ensuring opportunity for all people in the ,united ,states2 7#b7 when companies compete1 businesses offer the highest quality and choice of goods for the lowest possible prices to consumers and other businesses2 7#c7 competition fosters small business growth1 reduces economic inequality1 and spurs innovation2 7#d7 concentration that leads to market power and anticompetitive conduct makes it more difficult for people in the ,united ,states to start their own businesses1 depresses wages1 and increases economic inequality2 7#e7 undue market concentration also contributes to the consolidation of political power1 undermining the health of democracy in the ,united ,states2 7#f7 the anticompetitive effects of market power created by concentration include higher prices1 lower quality1 significantly less choice1 reduced innovation1 foreclosure of competitors1 increased entry barriers1 and monopsony power2 7#g7 monopsony power-- 7,a7 allows a firm to force suppliers of goods or services to cut their prices to unreasonably low levels1 resulting in reduced business opportunities for suppliers and reduced availability and quality of products and services for consumers2 and 7,b7 can result in workers being forced to accept unreasonably low wages2 7#h7 horizontal consolidation1 vertical consolidation1 and conglomerate mergers all have potential to cause anticompetitive harm2 7#i7 unprecedented consolidation is reducing competition and threatens to place the ,american dream further out of reach for many consumers in the ,united ,states2 7#aj7 since #bjjh1 firms in the ,united ,states have engaged in over #aj1jjj1jjj1jjj1jjj in mergers and acquisitions2 7#aa7 between #bjaj and #bjae1 there was a #ej-percent increase in the number of mergers and acquisitions reviewed by the ,federal ,trade ,commission and the ,antitrust ,division of the ,department of ,justice2 7#ab7 the antitrust laws1 particularly section #g of the ,clayton ,act 7#ae ,u4,s4,c4 #ah71 are the first line of defense against anticompetitive mergers2 and 7#ac7 in recent years1 some court decisions and enforcement policies have limited the vitality of the ,clayton ,act to prevent harmful consolidation by-- 7,a7 discounting previously accepted presumptions that certain acquisitions are anticompetitive2 7,b7 focusing inordinately on the impact on price of an acquisition in the short term2 7,c7 underestimating the dangers that horizontal1 vertical1 and conglomerate mergers will lower quality1 reduce choice1 impede innovation1 exclude competitors1 increase entry barriers1 or create monopsony power2 and 7,d7 requiring the government to prove harmful effects of a merger to a near certainty4 7b7 ,purposes ,the purposes of this ,act are to promote competition and prevent harmful consolidation by restoring the original intent of the ,clayton ,act to address the full range of anticompetitive harms1 including-- 7#a7 eliminating the requirement that a merger substantially lessens competition to clarify that the ,clayton ,act prohibits mergers that1 as a result of consolidation1 may materially lower quality1 reduce choice1 reduce innovation1 exclude competitors1 increase entry barriers1 or increase price2 7#b7 inserting the phrase materially to establish that the plaintiff need not show an acquisition may cause a substantial amount of harm to competition1 but rather show that an acquisition may cause more than a de minimis amount of harm to competition2 7#c7 amending the ,clayton ,act to include the term monopsony to clarify that an acquisition that tends to create a monopsony violates the ,clayton ,act2 and 7#d7 establishing simple1 cost-effective decision rules that require the parties to certain acquisitions that either significantly increase consolidation or are extremely large bear the burden of establishing that the acquisition will not materially harm competition4 #c4 ,unlawful acquisitions ,section #g of the ,clayton ,act 7#ae ,u4,s4,c4 #ah7 is amended-- 7#a7 in the first and second undesignated paragraphs1 by striking substantially each place that term appears and inserting materially2 7#b7 by inserting or a monopsony after monopoly each place that term appears2 and 7#c7 by adding at the end the following3 ,in a case brought by the ,united ,states1 the ,federal ,trade ,commission1 or a ,state attorney general1 a court shall determine that the effect of an acquisition described in this section may be materially to lessen competition or create a monopoly or a monopsony if-- 7#a7 the acquisition would lead to a significant increase in market concentration in any line of commerce or in any activity affecting commerce in any section of the country2 or 7#b7 7,a7 the acquisition is not a transaction that is described in section #g;,a7c72 and 7,b7 7i7 as a result of such acquisition1 the acquiring person would hold an aggregate total amount of the voting securities and assets of the acquired person in excess of #e1jjj1jjj1jjj 7as adjusted and published for each fiscal year beginning after ,september #cj1 #bjbj1 in the same manner as provided in section #h7;a77#e7 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 #cj1 #bjai72 or 7ii7 7,i7 the person acquiring or the person being acquired has assets1 net annual sales1 or a market capitalization greater than #ajj1jjj1jjj1jjj 7as so adjusted and published72 and 7,,ii7 as a result of such acquisition1 the acquiring person would hold an aggregate total amount of the voting securities and assets of the acquired person in excess of #ej1jjj1jjj 7as so adjusted and published71 unless the acquiring and acquired person establish1 by a preponderance of the evidence1 that the effect of the acquisition will not be to tend to materially lessen competition or tend to create a monopoly or a monopsony4 ,in this paragraph1 the term #8materially lessen competition' means more than a de minimis amount4 4 #d4 ,post-settlement data ,section #g;,a of the ,clayton ,act 7#ae ,u4,s4,c4 #ah;a7 is amended by adding at the end the following3 7l7 7#a7 ,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 7#ae ,u4,s4,c4 #da et seq47 regarding an acquisition with respect to which notification is required under this section shall1 on an annual basis during the #e-year period beginning on the date on which the agreement is entered into1 submit to the ,federal ,trade ,commission or the ,assistant ,attorney ,general1 as applicable1 information sufficient for the ,federal ,trade ,commission or the ,united ,states1 as applicable1 to assess the competitive impact of the acquisition1 including-- 7,a7 the pricing1 availability1 and quality of any product or service1 or inputs thereto1 in any market1 that was covered by the agreement2 7,b7 the source1 and the resulting magnitude and extent1 of any cost-saving efficiencies or any consumer benefits that were claimed as a benefit of the acquisition and the extent to which any cost savings were passed on to consumers2 and 7,c7 the effectiveness of any divestitures or any conditions placed on the acquisition in preventing or mitigating harm to competition4 7#b7 ,the requirement to provide the information described in paragraph 7#a7 shall be included in an agreement described in that paragraph4 7#c7 ,the ,federal ,trade ,commission1 with the concurrence of the ,assistant ,attorney ,general1 by rule in accordance with section #eec of title #e1 ,united ,states ,code1 and consistent with the purposes of this section-- 7,a7 shall require that the information described in paragraph 7#a7 be in such form and contain such documentary material and information relevant to a proposed 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 7#a72 and 7,b7 may-- 7i7 define the terms used in this subsection2 7ii7 exempt1 from the requirements of this section1 information not relevant in assessing the competitive impact of the acquisition under paragraph 7#a72 and 7iii7 prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section4 4 #e4 ,office of ,competition ,advocate 7a7 ,definitions ,in this section-- 7#a7 the term agency has the meaning given the term in section #eea of title #e1 ,united ,states ,code2 7#b7 the term covered company means any company that has1 at any time1 been required to make a filing under section #g;,a of the ,clayton ,act 7#ae ,u4,s4,c4 #ah;a72 7#c7 the term ,office means the ,office of the ,competition ,advocate established under subsection 7b72 7#d7 the term ,chairman means the ,chairman of the ,commission2 and 7#e7 the term ,commission means the ,federal ,trade ,commission4 7b7 ,establishment ,there is established within the ,federal ,trade ,commission the ,office of the ,competition ,advocate4 7c7 ,competition ,advocate 7#a7 ,in general ,the head of the ,office shall be the ,competition ,advocate1 who shall-- 7,a7 report directly to the ,chairman2 and 7,b7 be appointed by the ,chairman1 with the concurrence of a majority of the ,commission1 including at least #a ,commissioner who is not a member of the same political party of the majority members of the ,commission1 from among individuals having experience in advocating for the promotion of competition4 7#b7 ,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 ,commission4 7#c7 ,limitation on service ,an individual who serves as the ,competition ,advocate may not be employed by the ,commission-- 7,a7 during the #b-year period ending on the date of appointment as ,competition ,advocate2 or 7,b7 during the #e-year period beginning on the date on which the person ceases to serve as the ,competition ,advocate4 7d7 ,staff of ,office ,the ,competition ,advocate1 after consultation with the ,chairman of the ,commission1 may retain or employ independent counsel1 research staff1 and service staff1 as the ,competition ,advocate determines is necessary to carry out the functions1 powers1 and duties of the ,office4 7e7 ,duties and powers ,the ,competition ,advocate shall-- 7#a7 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 consumers1 small businesses1 and employees about possible anticompetitive practices or adverse effects of concentration2 7#b7 recommend practices in certain industries that merit antitrust investigation1 but may not recommend practices in certain industries that do not merit antitrust investigation or are not anticompetitive2 7#c7 publicly provide recommendations to other ,federal agencies about administrative actions that may have anticompetitive effects and the potential harm to consumers if those actions are carried out2 7#d7 publish periodic reports on-- 7,a7 market concentration and its impact on the ,united ,states1 local geographic areas1 and different demographic and socioeconomic groups2 and 7,b7 the success of merger remedies required by the ,department of ,justice or the ,federal ,trade ,commission in consent decrees2 7#e7 collect data regarding concentration levels across industries and the impact and degree of antitrust enforcement2 and 7#f7 standardize the types and formats of data reported and collected4 7f7 ,subpoena authority 7#a7 ,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 market concentration and its impact on the ,united ,states1 local geographic areas1 and different demographic and socioeconomic groups and on the success of merger enforcement4 7#b7 ,written finding ,before issuing a subpoena to collect the information described in paragraph 7#a71 the ,competition ,advocate shall make a written finding that-- 7,a7 the data is required to carry out the functions of the ,competition ,advocate2 and 7,b7 the information is not available from a public source or another agency4 7#c7 ,mitigation of report burden ,before requiring the submission of a report from any company required to make a filing under section #g;,a of the ,clayton ,act 7#ae ,u4,s4,c4 #ah;a71 the ,competition ,advocate shall-- 7,a7 coordinate with other agencies or authority2 and 7,b7 whenever possible1 rely on information available from such agencies or authority4 7g7 ,data ,center 7#a7 ,establishment ,there is established within the ,office the ,data ,center4 7#b7 ,duties ,the ,data ,center shall-- 7,a7 collect1 validate1 and maintain data obtained from agencies1 as defined in section #eea of title #e1 ,united ,states ,code1 commercial data providers1 publicly available data sources1 and any covered company2 and 7,b7 prepare and publish1 in a manner that is easily accessible to the public-- 7i7 a concentration database2 7ii7 a merger enforcement database2 7iii7 any other database that the ,competition ,advocate determines is necessary to carry out the duties of the ,office2 and 7iv7 the format and standards for ,office data1 including standards for reporting financial transaction and position data to the ,office4 7#c7 ,regulations ,the ,competition ,advocate shall promulgate regulations relating to the collection and standardizing of data under paragraph 7#b74 7#d7 ,confidentiality 7,a7 ,in general ,the ,data ,center may not disclose any confidential data collected under paragraph 7#b74 7,b7 ,requirements ,data obtained from an agency shall be subject to the same confidentiality requirements and protection as the agency providing the data4 7,c7 ,information security ,the ,competition ,advocate shall ensure that data collected and maintained by the ,data ,center are kept secure and protected against unauthorized disclosure4