,,ii #aafth ,,congress #b;d ,session ,s4 #cdbf ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,march #aj1 #bjbj,ms4 ,klobuchar 7for herself1 ,mr4 ,blumenthal1 and ,mr4 ,booker7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to deter anticompetitive exclusionary conduct that harms competition and consumers1 to enhance the ability of the ,department of ,justice and the ,federal ,trade ,commission to enforce the antitrust laws1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,anticompetitive ,exclusionary ,conduct ,prevention ,act of #bjbj4 #b4 ,findings and purposes 7a7 ,findings ,congress finds that-- 7#a7 competitive markets1 in which multiple firms compete to buy and sell products and services1 are critical to ensuring economic opportunity for all people in the ,united ,states2 7#b7 when companies compete1 businesses offer the highest quality and choice of goods and services for the lowest possible prices to consumers and other businesses2 7#c7 competition fosters small business growth1 reduces economic inequality1 and spurs innovation and job creation2 7#d7 in the ,united ,states economy today1 the exercise of market power is substantial and growing2 7#e7 anticompetitive exclusionary conduct is an important source of market power and a substantial threat to the ,united ,states economy2 7#f7 when dominant sellers exercise market power1 they harm buyers by overcharging them1 reducing product or service quality1 limiting their choices1 and impairing innovation2 7#g7 when dominant buyers exercise market power1 they harm suppliers by underpaying them1 limiting their business opportunities1 and impairing innovation2 7#h7 when dominant employers exercise market power1 they harm workers by paying them low wages1 reducing their benefits1 and limiting their future employment opportunities2 7#i7 nascent or potential rivals can be an important source of competitive discipline for dominant firms2 7#aj7 antitrust enforcement against anticompetitive exclusionary conduct has been impeded when courts have declined to rigorously examine the facts in favor of inaccurate economic assumptions that are inconsistent with contemporary economic learning1 such as presuming that market power is not durable and can be expected to self-correct1 that monopolies drive innovation1 that above-cost pricing cannot harm competition1 and other flawed assumptions2 and 7#aa7 the courts of the ,united ,states have improperly implied immunity from the antitrust laws based on ,federal regulatory statutes1 even limiting the application of statutory antitrust savings clauses passed by ,congress4 7b7 ,purposes ,the purposes of this ,act are to-- 7#a7 deter exclusionary conduct that harms competition1 particularly by dominant firms2 and 7#b7 enhance antitrust enforcement by the ,department of ,justice1 the ,federal ,trade ,commission1 the ,state enforcement agencies1 and private parties4 #c4 ,definition ,in this ,act1 the term antitrust laws-- 7#a7 has the meaning given the term in subsection 7a7 of section #a of the ,clayton ,act 7#ae ,u4,s4,c4 #ab72 7#b7 includes-- 7,a7 section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de7 to the extent that such section applies to unfair methods of competition2 and 7,b7 this ,act and the amendments made by this ,act4 #d4 ,exclusionary conduct 7a7 ,in general ,the ,clayton ,act 7#ae ,u4,s4,c4 #ab et seq47 is amended by inserting after section #bf 7#ae ,u4,s4,c4 #bf;a7 the following3 #bf;,a4 ,exclusionary conduct 7a7 ,definitions ,in this section3 7#a7 ,exclusionary conduct 7,a7 ,in general ,the term exclusionary conduct means conduct that-- 7i7 materially disadvantages one or more actual or potential competitors2 or 7ii7 tends to foreclose or limit the opportunity of one or more actual or potential competitors to compete4 7,b7 ,limitations 7i7 ,applying for or enforcing a patent1 trademark1 or copyright1 unless such applications or enforcement actions are baseless or made in bad faith1 shall not alone constitute exclusionary conduct1 but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct4 7ii7 ,conduct that is necessary to comply with ,federal or ,state law shall not alone constitute exclusionary conduct1 but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct4 7#b7 ,market power ,the term market power means the ability of a person1 or a group of persons acting in concert1 to profitably impose transaction terms on counterparties1 including terms regarding price1 quantity1 product or service quality1 or other terms affecting the value of consideration exchanged in the transaction1 that are more favorable to the person or group of persons than what the person or group of persons could obtain in a competitive market4 7b7 ,violation 7#a7 ,in general ,it shall be unlawful for a person1 acting alone or in concert with other persons1 to engage in exclusionary conduct that presents an appreciable risk of harming competition4 7#b7 ,unfair method of competition ,a violation of paragraph 7#a7 shall constitute an unfair method of competition under section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de74 7c7 ,presumption 7#a7 ,in general ,exclusionary conduct shall be presumed to present an appreciable risk of harming competition and shall be a violation of subsection 7b77#a7 if the exclusionary conduct is undertaken1 with respect to a relevant market1 by a person or by a group of more than #a person acting in concert that-- 7,a7 has a market share of greater than #ej percent as a seller or a buyer in the relevant market2 or 7,b7 otherwise has significant market power in the relevant market4 7#b7 ,exception ,the presumption in paragraph 7#a7 shall be rebutted if the defendant establishes1 by a preponderance of the evidence1 that-- 7,a7 distinct procompetitive benefits of the exclusionary conduct in the relevant market eliminate the risk of harming competition presented by the exclusionary conduct2 7,b7 one or more persons1 not including any person participating in or facilitating the exclusionary conduct1 have entered or expanded their presence in the market with the effect of eliminating the risk of harming competition posed by the exclusionary conduct2 or 7,c7 the exclusionary conduct does not present an appreciable risk of harming competition4 7d7 ,considerations ,if the presumption in subsection 7c7 does not apply1 the determination of whether exclusionary conduct presents an appreciable risk of harming competition shall be based on the totality of the circumstances1 which may include consideration of-- 7#a7 the extent to which any distinct procompetitive benefits of the exclusionary conduct substantially eliminate the risk of harming to competition presented by the exclusionary conduct2 and 7#b7 whether one or more persons1 not including any person participating in or facilitating the exclusionary conduct1 have entered or expanded their presence in the market1 substantially eliminating the risk of harming competition presented by the exclusionary conduct4 7e7 ,limitations ,although the following circumstances may constitute evidence of a violation of subsection 7b77#a71 such violation does not require finding-- 7#a7 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 conduct2 7#b7 that the defendant treated persons subject to the exclusionary conduct differently than the defendant treated other persons2 7#c7 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 service2 or 7#d7 that the conduct of the defendant makes no economic sense apart from its tendency to reduce competition4 7f7 ,civil penalties ,any person who violates subsection 7b77#a7 shall be liable to the ,united ,states for a civil penalty1 which may be recovered in a civil action brought by the ,attorney ,general of the ,united ,states1 of not more than the greater of-- 7#a7 #ae percent of the total ,united ,states revenues of the person for the previous calendar year2 or 7#b7 #cj 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 conduct4 4 7b7 ,federal ,trade ,commission ,act 7#a7 ,civil penalties ,section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de7 is amended by adding at the end the following3 7o7 ,civil penalty for violation of section #bf;,a of the ,clayton ,act ,the ,commission may commence a civil action in a district court of the ,united ,states against any person1 partnership1 or corporation who violates subsection 7a77#a7 respecting an unfair method of competition that constitutes a violation of section #bf;,a of the ,clayton ,act to recover a civil penalty1 which shall accrue to the ,united ,states1 in an amount not more than the greater of-- 7#a7 #ae percent of the total ,united ,states revenues of the person1 partnership1 or corporation for the previous calendar year2 or 7#b7 #cj percent of the ,united ,states revenues of the person1 partnership1 or corporation in any line of commerce affected or targeted by the unlawful conduct during the period of the unlawful conduct4 4 7#b7 ,commission litigation authority ,section #af7;a77#b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #ef7;a77#b77 is amended-- 7,a7 in subparagraph 7,d71 by striking or after the semicolon2 7,b7 in subparagraph 7,e7-- 7i7 by moving the margins #b ems to the left2 and 7ii7 by inserting or after the semicolon2 and 7,c7 inserting after subparagraph 7,e7 the following3 7,f7 to recover civil penalties under section #e7o7 of this ,act2 4 #e4 ,joint enforcement guidelines 7a7 ,in general ,not later than #a year after the date of enactment of this ,act1 the ,attorney ,general and the ,federal ,trade ,commission shall issue joint guidelines outlining policies1 practices1 and analytical techniques relating to agency enforcement under section #bf;,a of the ,clayton ,act1 as added by section #d of this ,act1 including agency policies for determining the appropriate amount of a civil penalty to be sought under section #bf;,a of the ,clayton ,act and subsection 7o7 of section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de71 as added by section #d of this ,act1 with the goal of promoting transparency and deterring violations of section #bf;,a of the ,clayton ,act4 7b7 ,penalty considerations ,in establishing the guidelines described in subsection 7a7 regarding civil penalties1 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 violation1 including -- 7#a7 the volume of commerce affected2 7#b7 the duration and severity of the unlawful conduct2 7#c7 the intent of the person undertaking the unlawful conduct2 7#d7 the extent to which the unlawful conduct was egregious or a clear violation of the law2 7#e7 whether the civil penalty is to be applied in combination with other remedies for violations of section #bf;,a of the ,clayton ,act1 including-- 7,a7 structural remedies1 behavioral conditions1 or equitable disgorgement2 or 7,b7 other remedies available under section #d1 #d;,a1 #ae1 or #af of the ,clayton ,act 7#ae ,u4,s4,c4 #ae1 #ae;a1 #be1 #bf7 or section #ac7;b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #ec7;b772 7#f7 whether the person has previously engaged in the same or similar anticompetitive conduct2 and 7#g7 whether the person undertook the conduct in violation of a preexisting consent decree or court order4 7c7 ,updates ,the ,attorney ,general and the ,federal ,trade ,commission shall update the joint guidelines issued under subsection 7a71 as needed to reflect current agency policies and practices1 but not less frequently than once every #e years beginning on the date of enactment of this ,act4 7d7 ,public notice and comment 7#a7 ,guidelines ,before issuing guidelines under subsection 7a7 or subsection 7c71 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 #fj days after the date on which the guidelines are published4 7#b7 ,inapplicability of rule making provisions ,the provisions of section #eec of title #e1 ,united ,states ,code1 shall not apply to the guidelines issued under paragraph 7#a74 #f4 ,market definition 7a7 ,in general ,establishing liability under the antitrust laws does not require the definition of a relevant market1 except when the definition of a relevant market is required1 to establish a presumption or to resolve a claim1 under a statutory provision that explicitly references relevant market1 market concentration1 or market share4 7b7 ,direct evidence ,if direct evidence is proffered of actual or likely harm to competition or an appreciable risk to competition sufficient to satisfy the applicable statutory standard1 or that the effect of an acquisition subject to section #g of the ,clayton ,act 7#ae ,u4,s4,c4 #ah7 may be substantially to lessen competition or tend to create a monopoly1 neither a court nor the ,federal ,trade ,commission shall require definition of a relevant market in order to evaluate the evidence1 to find liability1 or to find that a claim has been stated under the antitrust laws4 7c7 ,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 laws4 #g4 ,limitations on implied immunity from the antitrust laws 7a7 ,in general ,in any action or proceeding to enforce the antitrust laws with respect to conduct that is regulated under ,federal statute1 no court or adjudicatory body may find that the ,federal statute1 or any rule or regulation promulgated in accordance with the ,federal statute1 implicitly precludes application of the antitrust laws to the conduct unless-- 7#a7 a ,federal agency or department actively regulates the conduct under the ,federal statute2 7#b7 the ,federal statute does not include any provision preserving the rights1 claims1 or remedies under the applicable antitrust laws or under any area of law that includes the antitrust laws2 and 7#c7 ,federal agency or department rules or regulations1 adopted by rulemaking or adjudication1 explicitly require or authorize the defendant to undertake the conduct4 7b7 ,existing ,federal regulation ,in any action or proceeding described in subsection 7a71 the antitrust laws shall be applied fully and without qualification or limitation1 and the scope of the antitrust laws shall not be defined more narrowly on account of the existence of ,federal rules1 regulations1 or regulatory agencies or departments1 unless application of the antitrust laws is precluded or limited by-- 7#a7 an explicit exemption from the antitrust laws under a ,federal statute2 or 7#b7 an implied immunity that satisfies the requirements under subsection 7a74 #h4 ,additional remedies2 rules of construction 7a7 ,additional remedies ,the rights and remedies provided under this ,act are in addition to1 not in lieu of1 any other rights and remedies provided by ,federal law1 including under section #d1 #d;,a1 #ae1 or #af of the ,clayton ,act 7#ae ,u4,s4,c4 #ae1 #ae;a1 #be1 #bf7 or section #ac7;b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #ec7;b774 7b7 ,rules of construction ,nothing in this ,act may be construed to-- 7#a7 impair or limit the applicability of any of the antitrust laws2 and 7#b7 prohibit any other remedy provided by ,federal law4