Sec. 4. Exclusionary conduct
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The Clayton Act ( 15 U.S.C. 12 et seq.) is amended by inserting after section 26 ( 15 U.S.C. 26a ) the following: In this section: The term exclusionary conduct means conduct that— materially disadvantages one or more actual or potential competitors; or tends to foreclose or limit the opportunity of one or more actual or potential competitors to compete. Applying for or enforcing a patent, trademark, or copyright, unless such applications or enforcement actions are baseless or made in bad faith, shall not alone constitute exclusionary conduct, but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct.
Conduct that is necessary to comply with Federal or State law shall not alone constitute exclusionary conduct, but such actions may be considered as part of a course of conduct that constitutes exclusionary conduct. The term market power means the ability of a person, or a group of persons acting in concert, to profitably impose transaction terms on counterparties, including terms regarding price, quantity, product or service quality, or other terms affecting the value of consideration exchanged in the transaction, that are more favorable to the person or group of persons than what the person or group of persons could obtain in a competitive market.
It shall be unlawful for a person, acting alone or in concert with other persons, to engage in exclusionary conduct that presents an appreciable risk of harming competition. A violation of paragraph
(1)shall constitute an unfair method of competition under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ). Exclusionary conduct shall be presumed to present an appreciable risk of harming competition and shall be a violation of subsection (b)(1) if the exclusionary conduct is undertaken, with respect to a relevant market, by a person or by a group of more than 1 person acting in concert that— has a market share of greater than 50 percent as a seller or a buyer in the relevant market; or otherwise has significant market power in the relevant market. The presumption in paragraph
(1)shall be rebutted if the defendant establishes, by a preponderance of the evidence, that— distinct procompetitive benefits of the exclusionary conduct in the relevant market eliminate the risk of harming competition presented by the exclusionary conduct; one or more persons, not including any person participating in or facilitating the exclusionary conduct, have entered or expanded their presence in the market with the effect of eliminating the risk of harming competition posed by the exclusionary conduct; or the exclusionary conduct does not present an appreciable risk of harming competition. If the presumption in subsection
(c)does not apply, the determination of whether exclusionary conduct presents an appreciable risk of harming competition shall be based on the totality of the circumstances, which may include consideration of— the extent to which any distinct procompetitive benefits of the exclusionary conduct substantially eliminate the risk of harming to competition presented by the exclusionary conduct; and whether one or more persons, not including any person participating in or facilitating the exclusionary conduct, have entered or expanded their presence in the market, substantially eliminating the risk of harming competition presented by the exclusionary conduct. Although the following circumstances may constitute evidence of a violation of subsection (b)(1), such violation does not require finding— 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 conduct; that the defendant treated persons subject to the exclusionary conduct differently than the defendant treated other persons; 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 service; or that the conduct of the defendant makes no economic sense apart from its tendency to reduce competition. Any person who violates subsection (b)(1) shall be liable to the United States for a civil penalty, which may be recovered in a civil action brought by the Attorney General of the United States, of not more than the greater of— 15 percent of the total United States revenues of the person for the previous calendar year; or 30 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 conduct. . Section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ) is amended by adding at the end the following: The Commission may commence a civil action in a district court of the United States against any person, partnership, or corporation who violates subsection (a)(1) respecting an unfair method of competition that constitutes a violation of section 26A of the Clayton Act to recover a civil penalty, which shall accrue to the United States, in an amount not more than the greater of— 15 percent of the total United States revenues of the person, partnership, or corporation for the previous calendar year; or 30 percent of the United States revenues of the person, partnership, or corporation in any line of commerce affected or targeted by the unlawful conduct during the period of the unlawful conduct. . Section 16(a)(2) of the Federal Trade Commission Act ( 15 U.S.C. 56(a)(2) ) is amended— in subparagraph (D), by striking or after the semicolon; in subparagraph (E)— by moving the margins 2 ems to the left; and by inserting or after the semicolon; and inserting after subparagraph
(E)the following: to recover civil penalties under section 5(o) of this Act; .
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