,,ii #aaith ,,congress #b;d ,session ,s4 #ddcd ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,april #bi1 #bjbf,mr4 ,booker 7for himself1 ,ms4 ,warren1 ,mr4 ,heinrich1 ,mr4 ,murphy1 and ,ms4 ,hirono7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to amend the ,clayton ,act to provide for the divestiture of certain transactions1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,correcting ,lapsed ,enforcement in ,antitrust ,norms for ,mergers ,act or the ,,clean ,mergers ,act4 #b4 ,divestiture of threshold transactions2 review of enforcement-lapse transactions ,the ,clayton ,act 7#ae ,u4,s4,c4 #ab et seq47 is amended by inserting after section #g;,a 7#ae ,u4,s4,c4 #ah;a7 the following3 #g;,b4 7a7 ,in this section-- 7#a7 the term agencies means the ,department of ,justice1 the ,federal ,trade ,commission1 the ,federal ,communications ,commission1 the ,department of ,transportation1 and the ,surface ,transportation ,board2 7#b7 the term court means any district court of the ,united ,states having jurisdiction over parties seeking a declaratory judgment or other relief pursuant to this ,act2 7#c7 the term covered period means the period beginning on ,january #bj1 #bjbe1 and ending on ,january #ai1 #bjbi2 7#d7 the term enforcement-lapse transaction means any transaction consummated during the covered period that is not a threshold transaction2 7#e7 the term ,,hhi means the ,herfindahl-,hirschman ,index2 7#f7 the term relevant market has the meaning given the term in the ,merger ,guidelines ,u4,s4 ,department of ,justice and the ,federal ,trade ,commission issued on ,december #ah1 #bjbc2 7#g7 the term transaction means an acquisition subject to section #g;,a1 including any transaction exempt from the requirements of subsection 7c7 of that section1 during the covered period2 and 7#h7 the term threshold transaction means a transaction consummated during the covered period with a value of not less than #aj1jjj1jjj1jjj4 7b7 7#a7 ,beginning on the date that is #ahj days after the date of enactment of this section1 the parties to a threshold transaction shall-- 7,a7 if the transaction was consummated before the date of enactment of this section1 complete divestiture of such transaction2 and 7,b7 if the transaction is consummated after the date of enactment of this section1 hold separate the assets of the merging entities to ensure such assets remain independent1 economically viable1 and that competition is maintained during the pendency of agency review under subsection 7c77#a74 7#b7 ,the acquiring person and person whose voting securities or assets were acquired may file an action for a declaratory judgment seeking to exempt the threshold transaction from the divestiture requirements under paragraph 7#a7 by demonstrating that all of the following conditions exist3 7,a7 ,the threshold transaction did not result in-- 7i7 a post-acquisition ,,hhi in excess of #a1hjj2 or 7ii7 a change in the ,,hhi of greater than #ajj in any relevant market2 7iii7 a market share greater than #cj percent of any relevant market2 or 7iv7 an increase in ,,hhi of more than #ajj4 7,b7 ,with respect to any line of business1 price increases or quality adjustments were materially consistent with representations made during agency review of the transaction4 7,c7 ,the threshold transaction was not followed by any significant reduction in output by the post-acquisition entity1 as compared to the highest level of combined output by the acquiring person and person whose voting securities or assets were acquired during the #b-year period ending on the date on which the agency began review of the transaction4 7,d7 ,the threshold transaction was not followed by any significant reduction in employment inconsistent with representations made or omitted during agency review of the transaction4 7,e7 ,any divestiture or other condition imposed in connection with the approval of the transaction achieved full and timely compliance without any accusation of circumvention1 malicious compliance1 or failure of any assets subject to divestiture4 7,f7 ,no lawyer or law firm involved in the transaction offered or provided pro bono legal services in connection with any settlement or agreement with any reviewing agency or executive branch official4 7#c7 ,in any proceeding initiated pursuant to subsection 7b77#b71 the ,attorney ,general of any ,state shall have an unconditional right of intervention4 7c7 7#a7 ,not later than #b years after the date of enactment of this section1 the agencies or the ,attorney ,general of any ,state may conduct a review of any enforcement-lapsed transaction consummated prior to or after the date of enactment of this section to determine whether any of the following conditions existed with respect to the review or clearance of such transaction3 7,a7 ,conduct constituting a violation of section #bja1 #bjh1 or #ajja of title #ah1 ,united ,states ,code1 or section #g;,a of this ,act4 7,b7 ,the transaction was cleared1 approved1 or subject to dismissal1 entry of a consent decree1 or other final disposition notwithstanding a written recommendation to the contrary by any civil servant in the agency conducting the review1 including-- 7i7 to open an investigation into a transaction2 7ii7 to request additional information and documentary materials2 7iii7 that a party withdraw a premerger notification and submit a new filing for a transaction2 7iv7 to challenge a transaction2 or 7v7 to further modify or condition the transaction4 7,c7 ,the transaction was approved1 cleared1 or otherwise disposed of without the completion of an investigation following a request for additional information or documentary material under section #g;,a7e74 7,d7 ,any political appointee1 registered lobbyist1 person acting at the direction or on behalf of the acquiring person and person whose voting securities or assets were acquired1 or person with a direct or indirect financial interest in the outcome of such transaction1 communicated with any official or employee of the agencies1 the ,executive ,office of the ,president1 or any other ,federal agency regarding the review or disposition of such transaction outside of procedures established for public comment or formal party submissions4 7,e7 ,a material misrepresentation or omission related to the transaction was made to the agency at any point prior to or during the completion of any review of a transaction4 7,f7 ,the ,president1 or any member of the ,cabinet1 or head of a ,federal agency1 made statements-- 7i7 indicating a preference for a particular acquiring person and person whose voting securities or assets were acquired1 or outcome in such transaction2 7ii7 suggesting that commitments1 concessions1 or promises were sought or obtained from any acquiring person and person whose voting securities or assets were acquired in connection with the review or clearance thereof2 or 7iii7 suggesting that the disposition of such transaction was influenced by considerations unrelated to the competitive effects of such transaction under the antitrust laws4 7,g7 ,the approval of the transaction was materially influenced by a conflict of interest1 improper ex parte communication1 or other ethical violation or professional misconduct by any official involved in the review4 7,h7 ,the acquiring person and person whose voting securities or assets were acquired were represented by any law firm1 lobbying firm1 or other person that had previously employed a political appointee at a reviewing agency during the #a-year period ending on the date of the appointment4 7,i7 ,any foreign government1 foreign state-owned enterprise1 sovereign wealth fund1 or agent of a foreign principal1 as defined in section #a7;b7 of the ,foreign ,agents ,registration ,act of #aich1 as amended 7#bb ,u4,s4,c4 #faa7;b771 directly or indirectly sought to influence the review1 clearance1 or disposition of the transaction through any communication with any official or employee of the agencies1 the ,executive ,office of the ,president1 or any other ,federal agency4 7#b7 7,a7 ,if the reviewing agency determines that there is a reasonable basis to conclude that #a or more of the conditions described in subparagraphs 7,a7 through 7,i7 of paragraph 7#a7 are met1 the agency shall provide written notice to the acquiring person and person whose voting securities or assets were acquired requiring divestiture of any and all transaction assets1 including the dissolution of any agreement or venture incidental to the transaction1 not later than #cj days after such determination4 7,b7 ,the divestiture required under subparagraph 7,a7 shall be completed not later than #ahj days after the date on which the acquiring person and person whose voting securities or assets were acquired receive the notice under that subparagraph1 unless the acquiring person and person whose voting securities or assets were acquired file an action for a declaratory judgment under paragraph 7#c74 7#c7 ,the acquiring person and person whose voting securities or assets were acquired may file for an action for a declaratory judgment seeking to exempt the enforcement-lapsed transaction from the divestiture requirements under paragraph 7#b7 by demonstrating to the court by clear and convincing evidence that1 as to any condition forming the basis of a notice to divest under paragraph 7#b71 such condition-- 7,a7 did not occur2 or 7,b7 was so immaterial to any agency action related to the transaction that no reasonable person might consider the condition and agency action related in any way4 7#d7 ,in any proceeding initiated pursuant to paragraph 7#c71 the ,attorney ,general of any ,state shall have an unconditional right of intervention4 7d7 ,in any action under this section1 the identification of the relevant market-- 7#a7 shall not require direct evidence or expert witness testimony regarding prices1 output1 or substitutability2 and 7#b7 shall defer to any plausible submarket1 which may be adequately defined based on indirect evidence of the boundaries of the relevant market1 including practical indicia of market boundaries recognized by the industry1 customers or the public1 or any potential submarket considered by any agency at the time the transaction was reviewed4 7e7 7#a7 ,all acquiring persons and persons whose voting securities or assets were acquired during the covered period and any counsel1 lobbyist1 or other agent of the acquiring person and person whose voting securities or assets were acquired shall-- 7,a7 preserve any written or oral communication by or on behalf of such acquiring person and person whose voting securities or assets were acquired1 including any ephemeral message1 by any officer1 director1 employee1 or agent of such acquiring person and person whose voting securities or assets were acquired1 or other person1 with any officer or employee of the ,united ,states related to the transaction2 7,b7 preserve any document and electronically stored information described in rule #cd7;a77#a77;,a7 of the ,federal ,rules of ,civil ,procedure related to the transaction2 and 7,c7 take all steps necessary to prevent the destruction1 loss1 or alteration of any such document1 electronically stored information1 communication1 and other data or information generated by or stored on the a computer1 mobile device1 or storage media of an acquiring person and person whose voting securities or assets were acquired4 7#b7 ,if a party fails to comply with paragraph 7#a71 in any proceeding before a court relating to the transaction1 the court shall-- 7,a7 instruct the factfinder to draw an adverse inference that the evidence that was not preserved would have been unfavorable to the party that failed to preserve such evidence2 7,b7 sanction counsel and executives to the extent they knew or should have known their actions or inactions would cause such failure2 and 7,c7 make criminal referrals to the extent such failure is a violation of section #aeab7;c7 of title #ah1 ,united ,states ,code4 7#c7 ,any records preserved pursuant to this subsection shall be made available to the attorney general of any ,state upon request4 7f7 7#a7 ,if the acquiring person and person whose voting securities or assets were acquired fail to complete divestiture pursuant to subsection 7b77#a7 or 7c77#b7 before the date that is #ij days after the date on which the divestiture is required to be completed1 the court shall appoint1 or a reviewing agency shall move a court to appoint1 an independent divestiture trustee with the authority to effect the sale of assets on such terms as the trustee determines are reasonable1 subject to court approval4 7#b7 ,if a court finds that any person knowingly violated the requirements of subsection 7b77#a7 or 7c77#b71 the court may-- 7,a7 impose a civil penalty not to exceed the greater of-- 7i7 #ajj1jjj each day during which such violation persists2 or 7ii7 #e percent of the total value of the transaction2 7,b7 impose against the chief executive officer and board members of any entity resulting from the transaction1 a civil penalty not more than #ajj1jjj each day during which such violation persists2 and 7,c7 impose any other monetary or equitable relief1 or initiate a contempt proceeding or criminal referral that the court1 in its discretion1 determines is necessary to effectuate compliance with the requirements of this ,act4 7#c7 ,if the court finds that the failure to divest pursuant to subsection 7b77#a7 or 7c77#b7 was knowing1 the court may award damages in an amount equal to #c times the value of the commercial benefit derived by the parties from the continued operation of the assets subject to divestiture during the period of noncompliance4 7#d7 ,if the agencies have probable cause to believe that any person has violated section #bja1 section #bjh1 or section #ajja of title #ah1 ,united ,states ,code1 in connection with the review or approval of a transaction1 the ,attorney ,general shall appoint a special counsel to investigate and1 if warranted1 prosecute such violations4 7g7 7#a7 ,except as provided in paragraph 7#b71 in any action by an acquiring person and person whose voting securities or assets were acquired for declaratory judgment1 as to any threshold or enforcement-lapse transaction1 structural relief1 including divestiture1 dissolution1 or rescission1 shall be the presumptive remedy for restoring competition in any relevant market4 7#b7 ,the court may order additional remedies1 including the disgorgement of any gain attributable to the transaction1 only upon a finding supported by clear evidence that-- 7,a7 a divestiture is physically or technologically impossible2 or 7,b7 any other remedy would not fully and effectively restore competition4 4 #c4 ,limitations for antitrust actions ,section #d;,b of the ,clayton ,act 7#ae ,u4,s4,c4 #ae;b7 is amended1 in the first sentence1 by striking four years and inserting #aj years4 #d4 ,severability ,if any provision of this ,act1 an amendment made by this ,act1 or the application of such provision or amendment to any person or circumstance is held to be unconstitutional1 the remainder of this ,act1 the amendments made by this ,act1 and the application of the provisions of such to any person or circumstance shall not be affected thereby4