,,ii #aaith ,,congress #ast ,session ,s4 #bcba ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,july #ag1 #bjbe ,ms4 ,warren 7for herself1 ,ms4 ,baldwin1 ,mr4 ,blumenthal1 ,mr4 ,fetterman1 ,mr4 ,kim1 ,mr4 ,markey1 ,mr4 ,merkley1 ,mr4 ,sanders1 ,ms4 ,slotkin1 and ,mr4 ,whitehouse7 introduced the following bill2 which was read twice and referred to the ,committee on ,commerce1 ,science1 and ,transportation ,a ,,bill ,to make price gouging unlawful1 to expand the ability of the ,federal ,trade ,commission to seek permanent injunctions and equitable relief1 and for other purposes4 #a4 ,short title2 table of contents 7a7 ,short title ,this ,act may be cited as the ,price ,gouging ,prevention ,act of #bjbe4 7b7 ,table of contents ,the table of contents for this ,act is as follows3 ,sec4 #a4 ,short title2 table of contents4 ,sec4 #b4 ,definitions4 ,sec4 #c4 ,prevention of price gouging4 ,sec4 #d4 ,disclosures in ,,sec filings4 ,sec4 #e4 ,funding4 #b4 ,definitions ,in this ,act3 7#a7 ,commission ,the term ,commission means the ,federal ,trade ,commission4 7#b7 ,critical trading partner ,the term critical trading partner means a person that has the ability to restrict1 impede1 or foreclose access to the inputs1 customers1 partners1 goods1 services1 technology1 platform1 facilities1 or tools of such person in a way that harms competition or limits the ability of the customers or suppliers of such person to carry out business effectively4 7#c7 ,exceptional market shock ,the term exceptional market shock means-- 7,a7 any change or imminently threatened 7as determined under guidance issued by the ,commission7 change in the market for a good or service resulting from a natural disaster1 failure or shortage of electric power or other source of energy1 concerted labor action1 lockout1 civil disorder1 war1 military action1 national or local emergency1 abrupt or significant shift in trade policy1 public health emergency1 or any other cause of an atypical disruption in such market2 or 7,b7 any period of time during which the ,president has declared a major disaster or emergency under section #dja or #ejb1 respectively1 of the ,robert ,t4 ,stafford ,disaster ,relief and ,emergency ,assistance ,act 7#db ,u4,s4,c4 #eagj1 #eaia74 7#d7 ,good or service ,the term good or service means any good or service offered in commerce4 7#e7 ,state ,the term ,state means each of the several ,states1 the ,district of ,columbia1 each commonwealth1 territory1 or possession of the ,united ,states1 and each federally recognized ,indian ,tribe4 7#f7 ,ultimate parent entity ,the term ultimate parent entity has the meaning given such term in section #hja4a of title #af1 ,code of ,federal ,regulations 7or any successor regulation74 #c4 ,prevention of price gouging 7a7 ,in general ,it shall be unlawful for a person to sell or offer for sale a good or service at a grossly excessive price1 regardless of the person's position in a supply chain or distribution network4 7b7 ,affirmative defense 7#a7 ,in general ,subsection 7a7 shall not apply to the sale1 or offering for sale1 of a good or service by a person if-- 7,a7 the person's ultimate parent entity earned less than #ajj1jjj1jjj in gross revenue from goods or services provided in the ,united ,states during the #ab-month period preceding the sale or offer that allegedly violates subsection 7a72 and 7,b7 the person demonstrates by a preponderance of the evidence that the increase in the price of the good or service involved is directly attributable to additional costs that are-- 7i7 not within the control of the person2 and 7ii7 incurred by the person in procuring1 acquiring1 distributing1 or providing the good or service4 7#b7 ,inflation adjustment ,beginning on ,january #a1 #bjbf1 the ,commission shall annually adjust the amount specified in paragraph 7#a77;,a7 by the percentage change in the consumer price index for all urban consumers published by the ,bureau of ,labor ,statistics for the #ab-month period ending on ,december #ca of the previous year4 7c7 ,presumptive violations ,a person shall be presumed to be in violation of subsection 7a7 if1 during an exceptional market shock1 it is shown by a preponderance of the evidence that the person-- 7#a7 7,a7 has unfair leverage2 or 7,b7 is using the effects or circumstances related to an exceptional market shock as a pretext to increase prices2 and 7#b7 regardless of the person's position in a supply chain or distribution network1 sells or offers for sale a good or service at an excessive price compared to-- 7,a7 the average price at which the good or service was sold or offered for sale by the person in the market during the #abj-;day period preceding such exceptional market shock2 or 7,b7 the price at which the good or service was sold or offered for sale by competing sellers in the market during the exceptional market shock4 7d7 ,rebuttal ,a person may rebut a presumption under subsection 7c7 if the person demonstrates by clear and convincing evidence that the increase in the price of the good or service involved is directly attributable to additional costs that are-- 7#a7 not within the control of the person2 and 7#b7 incurred by the person in procuring1 acquiring1 distributing1 or providing the good or service4 7e7 ,unfair leverage 7#a7 ,in general 7,a7 ,characteristics of unfair leverage ,for purposes of subsection 7c71 a person has unfair leverage if the person-- 7i7 earned at least #a1jjj1jjj1jjj in gross revenue from goods or services provided in the ,united ,states during the #ab-month period preceding the sale or offer that allegedly violates subsection 7a72 7ii7 discriminates between otherwise equal trading partners in the same market by applying differential prices or conditions2 7iii7 is a critical trading partner2 7iv7 engages in unfair1 deceptive1 or abusive acts or practices2 7v7 has a dominant position in-- 7,i7 the conduct of any business1 trade1 or commerce2 7,,ii7 any labor market2 or 7,,iii7 the furnishing of any service2 or 7vi7 has a characteristic described in a rule promulgated by the ,commission that further defines unfair leverage4 7,b7 ,presumption of a dominant position ,for purposes of subparagraph 7,a77v71 a person shall be presumed to have a dominant position if-- 7i7 evidence shows that the person is not constrained by meaningful competitive pressures2 or 7ii7 the person-- 7,i7 has a share of #dj percent or greater of a relevant market as a seller2 or 7,,ii7 has a share of #cj percent or greater of a relevant market as a buyer4 7#b7 ,inflation adjustment ,beginning on ,january #a1 #bjbf1 the ,commission shall annually adjust the amount specified in paragraph 7#a77;,a77i7 by the percentage change in the consumer price index for all urban consumers published by the ,bureau of ,labor ,statistics for the #ab-month period ending on ,december #ca of the previous year4 7f7 ,enforcement by the ,commission 7#a7 ,unfair or deceptive acts or practices ,a violation of this section or a regulation promulgated under this section shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section #ah7;a77#a77;,b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #eg;a7a77#a77;,b774 7#b7 ,powers of the ,commission 7,a7 ,in general ,except as provided by subparagraphs 7,d7 and 7,e71 the ,commission shall enforce this section in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms and provisions of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 were incorporated into and made a part of this section4 7,b7 ,privileges and immunities ,any person who violates this section or a regulation promulgated under this section shall be subject to the penalties and entitled to the privileges and immunities provided in the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq474 7,c7 ,authority preserved ,nothing in this section shall be construed to limit the authority of the ,commission under any other provision of law4 7,d7 ,independent litigation authority ,if the ,commission has reason to believe that a person has violated this section1 the ,commission may bring a civil action in any appropriate ,united ,states district court to-- 7i7 enjoin any further such violation by such person2 7ii7 enforce compliance with this section2 7iii7 obtain a permanent1 temporary1 or preliminary injunction2 7iv7 obtain civil penalties2 7v7 obtain damages1 restitution1 or other compensation on behalf of aggrieved consumers2 or 7vi7 obtain any other appropriate equitable relief4 7,e7 ,civil penalties ,in addition to any other penalties as may be prescribed by law1 each violation of this section shall carry a civil penalty not to exceed-- 7i7 if the person who committed the violation does not have unfair leverage 7as described in subsection 7e771 the lesser of-- 7,i7 #be1jjj2 or 7,,ii7 #e percent of the revenues earned by the person's ultimate parent entity during the preceding #ab-month period2 or 7ii7 if the person who committed the violation has unfair leverage1 #e percent of the revenues earned by the person's ultimate parent entity during the preceding #ab-month period4 7,f7 ,rulemaking 7i7 ,in general ,the ,commission may promulgate in accordance with section #eec of title #e1 ,united ,states ,code1 such rules as may be necessary to carry out this section1 including guidelines regarding what circumstances constitute an exceptional market shock or guidelines that provide for additional characteristics that demonstrate that a person has unfair leverage4 7ii7 ,required guidance ,not later than #ahj days after the date of enactment of this ,act1 the ,commission shall promulgate regulations regarding violations of this section1 which shall include guidelines on1 for the purposes of this ,act1 what constitutes a market1 a grossly excessive price for a good or service1 and an excessive price for a good or service4 7iii7 ,definition of grossly excessive price 7,i7 ,in general ,for purposes of subsection 7a7 and the guidelines on what constitutes a grossly excessive price described in clause 7ii71 the ,commission shall define the term grossly excessive price using any metric it deems appropriate4 7,,ii7 ,definition considerations ,in formulating the definition in subclause 7,i71 the ,commission shall consider whether to provide that such term shall include a price for a good or service that is an amount equal to or greater than #abj percent 7or a lesser percentage1 as determined appropriate by the ,commission7 of the average price for such good or service in the market during the #f-month period preceding the sale or offer that allegedly violates subsection 7a74 7g7 ,enforcement by ,state attorneys general 7#a7 ,in general ,if the attorney general of a ,state has reason to believe that any person has violated or is violating this section1 the attorney general1 in addition to any authority it may have to bring an action in ,state court under the laws of such ,state1 may bring a civil action in any appropriate ,united ,states district court or in any other court of competent jurisdiction1 including a ,state court1 to-- 7,a7 enjoin any further such violation by such person2 7,b7 enforce compliance with this section2 7,c7 obtain a permanent1 temporary1 or preliminary injunction2 7,d7 obtain civil penalties2 7,e7 obtain damages1 restitution1 or other compensation on behalf of residents of the ,state2 or 7,f7 obtain any other appropriate equitable relief4 7#b7 ,rights of the ,commission 7,a7 ,notice to the ,commission 7i7 ,in general ,except as provided in clause 7ii71 before initiating a civil action under paragraph 7#a71 the attorney general of a ,state shall provide to the ,commission a written notice of such action and a copy of the complaint for such action4 7ii7 ,exception ,if the attorney general determines that it is not feasible to provide the notice described in clause 7i7 before initiating a civil action under this subsection1 the attorney general shall provide written notice of the action and a copy of the complaint to the ,commission immediately upon initiating the civil action4 7iii7 ,jurisdiction not affected ,an attorney general failing to provide notice under clause 7i7 shall not prevent the attorney general or the ,commission from having jurisdiction over a civil action brought under paragraph 7#a7 or imperil such civil action in any way4 7,b7 ,intervention ,the ,commission may-- 7i7 intervene in any civil action brought by the attorney general1 official1 or agency of a ,state under this subsection2 and 7ii7 upon intervening-- 7,i7 be heard on all matters arising in the civil action2 and 7,,ii7 file petitions for appeal of a decision in the civil action4 7#c7 ,investigatory powers ,nothing in this subsection may be construed to prevent the attorney general of a ,state from exercising the powers conferred on the attorney general by the laws of the ,state to conduct investigations1 to administer oaths or affirmations1 or to compel the attendance of witnesses or the production of documentary or other evidence4 7#d7 ,limitation on ,state action while ,federal action is pending ,if the ,commission has instituted a civil action for a violation of this section1 no ,state attorney general may1 without the approval of the ,commission1 bring an action under this subsection during the pendency of that action against any defendant named in the complaint of the ,commission for any violation of this section alleged in the complaint4 7#e7 ,relationship with ,state-law claims ,if the attorney general of a ,state has authority to bring an action under ,state law directed at acts or practices that also violate this section1 the attorney general may assert a claim under ,state law and a claim under this section in the same civil action4 7#f7 ,venue2 ,service of process 7,a7 ,venue ,any action brought under paragraph 7#a7 may be brought in-- 7i7 the district court of the ,united ,states that meets applicable requirements relating to venue under section #acia of title #bh1 ,united ,states ,code2 or 7ii7 another court of competent jurisdiction4 7,b7 ,service of process ,in an action brought under paragraph 7#a71 process may be served in any district in which-- 7i7 the defendant is an inhabitant1 may be found1 or transacts business2 or 7ii7 venue is proper under section #acia of title #bh1 ,united ,states ,code4 7#g7 ,actions by other ,state officials 7,a7 ,in general ,in addition to civil actions brought by an attorney general under paragraph 7#a71 any other officer of a ,state who is authorized by the ,state to do so may bring a civil action under paragraph 7#a71 subject to the same requirements and limitations that apply under this subsection to civil actions brought by attorneys general4 7,b7 ,savings provision ,nothing in this subsection may be construed to prohibit an authorized official of a ,state from initiating or continuing any proceeding in a court of the ,state for a violation of any civil or criminal law of the ,state4 7#h7 ,effect on ,state laws ,nothing in this section shall preempt or otherwise affect any ,state or local law4 #d4 ,disclosures in ,,sec filings 7a7 ,definitions ,in this section3 7#a7 ,covered issuer ,the term covered issuer means an issuer that-- 7,a7 has a covered quarter2 and 7,b7 in the quarter following the covered quarter described in subparagraph 7,a71 is required to submit ,form #aj-,q or ,form #aj-,k4 7#b7 ,covered quarter ,the term covered quarter means a quarter during which there is an exceptional market shock4 7#c7 ,form #aj-,k ,the term ,form #aj-,k means the form described in section #bdi4caj of title #ag1 ,code of ,federal ,regulations1 or any successor regulation4 7#d7 ,form #aj-,q ,the term ,form #aj-,q means the form described in section #bdj4ae;d-#ac of title #ag1 ,code of ,federal ,regulations1 or any successor regulation4 7#e7 ,issuer ,the term issuer has the meaning given the term in section #c7;a7 of the ,securities ,exchange ,act of #aicd 7#ae ,u4,s4,c4 #gh;c7a774 7b7 ,inclusion in filing ,each covered issuer1 in each ,form #aj-,k or ,form #aj-,q that the covered issuer is required to file in a quarter following a covered quarter1 shall include in the filing the following information with respect to that covered quarter1 as compared with the quarter preceding that covered quarter3 7#a7 ,the percentage change in the volume of goods or services sold1 and the percentage change in the average sales price of those goods or services1 which shall be broken down by material product categories1 when relevant1 and presented in a tabular format4 7#b7 ,the gross margins of the covered issuer1 which shall be broken down by material product categories1 when relevant1 and presented in a tabular format4 7#c7 ,presented in tabular format1 the share of the increase in revenue of the covered issuer that is attributable to-- 7,a7 a change in the cost of goods or services sold by the covered issuer2 and 7,b7 a change in the volume of goods or services sold by the covered issuer4 7#d7 ,the percentage change in the costs of the covered issuer1 which shall be broken down by category and presented in tabular format4 7#e7 ,in dollars1 the change in the costs of the covered issuer and the revenue of the covered issuer1 which shall be presented in tabular format4 7#f7 ,a detailed narrative disclosure of the pricing strategy of the covered issuer1 which shall include-- 7,a7 an explanation for any increase in the gross margins of material product categories1 including all material causes for such an increase1 an explanation of how each such material cause affected such an increase1 and a description of the relative importance of each such material cause with respect to such an increase2 7,b7 an explanation for the decisions made by the covered issuer with respect to the prices of goods or services sold by the covered issuer2 7,c7 if the covered issuer increased prices at a rate that was greater than the rate at which the costs incurred by the covered issuer increased1 the rationale and objectives for increasing prices in such a manner2 and 7,d7 a description of conditions under which the covered issuer plans to modify pricing after the date on which the covered issuer submits the filing4 7c7 ,regulations ,not later than #ahj days after the date of enactment of this ,act1 the ,securities and ,exchange ,commission shall issue final regulations1 or amend existing regulations of the ,commission1 to carry out this section4 7d7 ,effective date ,this section shall take effect on the date on which the ,securities and ,exchange ,commission issues final regulations under subsection 7c7 or completes the amendments required under that subsection1 as applicable4 #e4 ,funding ,in addition to amounts otherwise available1 there is appropriated to the ,commission for fiscal year #bjbe1 out of any money in the ,treasury not otherwise appropriated1 #a1jjj1jjj1jjj1 to remain available until ,september #cj1 #bjcc1 for carrying out the work of the ,commission4