Sec. 4. Banning all prohibited mergers and strengthening antitrust agency enforcement
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Section 7 of the Clayton Act ( 15 U.S.C. 18 ) is amended— in the first and second undesignated paragraphs, by striking lessen competition, or to tend to create a monopoly each place the term appears and inserting harm the competitive process, or create or help maintain a monopoly, a monopsony, market power, or unfair methods of competition ; in the first, second, and third undesignated paragraph, by inserting (including labor) after any activity affecting commerce each place the term appears; and by adding at the end the following:
Any prohibited merger shall be unlawful under this section. Neither quantitative evidence nor a definition of a relevant market or market share shall be required to establish a violation under this section. Harms to the competitive process include the harms described in section 7A. . Section 7A(a) of the Clayton Act ( 15 U.S.C. 18a(a) ) is amended— in the matter preceding paragraph (1), by inserting , subject to subsection (b), before the waiting ; in paragraph (1), by striking and at the end; in paragraph (2)(B)(ii)(III), by striking the period at the end and inserting ; and ; and by inserting after paragraph (2)(B)(ii)(III) the following: as a result of such acquisition, the acquiring person would hold an aggregate total amount of the voting securities and assets of the acquired person of $50,000,000 (as so adjusted and published) or more; and the acquiring person, or the person whose voting securities or assets are being acquired— has annual revenues in excess of $5,000,000,000 (as so adjusted and published); or is a financial institution, an equity fund, or a registered investment adviser under section 203 of the Investment Advisers Act of 1940 ( 15 U.S.C. 80b–3 ), if the person or the ultimate parent entity of the person has greater than $10,000,000,000 (as so adjusted and published) in capitalization, commitments, or assets under management. .
Section 7A of the Clayton Act ( 15 U.S.C. 18a ) is amended— in subsection (b)— in paragraph (1)(B)— by striking thirtieth and inserting 120th ; and by striking fifteenth and inserting 60th ; and in paragraph (2), by striking the Assistant and all that follows through the period at the end and inserting on demonstration of an emergency may, in individual cases, terminate the waiting period specified in paragraph
(1)and allow any person to proceed with any acquisition subject to this section, upon a vote of the Federal Trade Commission or approval of the Assistant Attorney General, and promptly shall cause to be published in the Federal Register a notice that details the justification of such decision. The waiting period may not be terminated under this paragraph without the approval of all relevant agencies and States that have received materials pursuant to subsection (l). ; in subsection (e), by adding at the end the following: No person shall acquire, directly or indirectly, any voting securities or assets of another person under subsection
(a)unless— the waiting period expires or is terminated; and the Federal Trade Commission or the Assistant Attorney General has not rejected the acquisition; or an appropriate court issues a final, nonappealable order reversing the decision of the Federal Trade Commission or the Assistant Attorney General to reject the acquisition. Not later than 15 days after the date on which the Federal Trade Commission and the Assistant Attorney General receive a notification filed under subsection (a), the Federal Trade Commission and the Assistant Attorney General shall determine whether the Federal Trade Commission or the Assistant Attorney General shall review the acquisition, which shall be publicly announced. If no decision is made under subparagraph
(A)before the expiration of the 15-day period, the Federal Trade Commission shall review the acquisition, which shall be publicly announced. Not later than 120 days after the date on which the Federal Trade Commission and the Assistant Attorney General receive a notification filed under subsection (a), the Federal Trade Commission or the Assistant Attorney General shall determine whether to reject the acquisition. The Federal Trade Commission or the Assistant Attorney General shall provide— an opportunity for public comment during the 60-day period beginning on the date on which a public announcement is made under paragraph (4); and the public with— notice of a notification filed under subsection (a); and a summary of all documentary material and information described in subsection (d). The Federal Trade Commission or the Assistant Attorney General shall consider any public comments submitted under this paragraph before making a determination under paragraph (5). Harms to the competitive process may include, without limitation, harms to workers (including significant layoffs or harms to existing collective bargaining agreements, retirees, worker benefits and compensation, or labor conditions), consumers (including patients, renters, and students), customer choice, sellers, small or minority-owned businesses (including farms and ranches), local, rural, or low-income communities, communities of color, privacy, quality (including health and safety), entrepreneurship, or innovation. When evaluating whether an acquisition is likely to harm the competitive process, the Federal Trade Commission or the Assistant Attorney General shall consider— effects in any relevant market (including labor markets), cross-market effects or impacts on the lines of commerce of the parties beyond any relevant markets, impacts throughout the supply chains or business ecosystems of the parties, and impacts on small or minority-owned businesses (including farms and ranches), local, rural, or low-income communities, and communities of color; and the history of— express collusion in any relevant market; acquisitions by a party in any relevant market during the preceding 5-year period; and any anticompetitive effects that followed previous acquisitions of the parties, including— increased prices for consumers; reduced wages for workers; reductions in safety for consumers or workers; increased injuries or deaths for consumers or workers; bankruptcy or financial distress of acquired companies; significant worker layoffs; and reduced investments in research and development. The Federal Trade Commission or the Assistant Attorney General may determine that the acquisition is likely to harm the competitive process if the history described in subparagraph (B)(ii) is significant or extensive. When evaluating an acquisition for which any party (or its ultimate parent entity) is a dominant firm, the Federal Trade Commission or the Assistant Attorney General may determine that the acquisition is likely to harm the competitive process if— another party offers overlapping, competing, or functionally equivalent services or products; another party is a nascent competitor or maverick; another party is a critical trading partner in the supply chains or business ecosystems of the parties; or the acquisition would create a platform conflict of interest. The decision of the Federal Trade Commission or the Assistant Attorney General not to reject an acquisition under subsection
(a)shall— be made publicly available by the date on which the waiting period expires or is terminated; include a summary of the review process and identify the factors considered in making the decision not to reject the acquisition, which shall include (as relevant or applicable) the possible harms listed in paragraph (7); have no precedential value for any future decisions regarding whether to reject an acquisition by the same or different persons; shall not preclude the Federal Trade Commission, the Assistant Attorney General, or a State attorney general from investigating the acquisition, seeking to unwind the acquisition, or seeking to impose remedies on the parties to the acquisition at a later date; and shall have no bearing on the legality of the acquisition if the acquisition is challenged through judicial proceedings. During the waiting period (or any extension thereof), neither the Federal Trade Commission nor the Assistant Attorney General may enter into any settlement agreement (including commitments to structural or behavioral remedies) with the parties to an acquisition under subsection
(a)when deciding whether to reject the acquisition. If the Federal Trade Commission or the Assistant Attorney General declines to reject an acquisition under subsection
(a)by the end of the waiting period, the Federal Trade Commission or the Assistant Attorney General, respectively, may issue an order requiring the parties to hold their assets separate for a period not to exceed 60 days. The Federal Trade Commission or the Assistant Attorney General shall reject an acquisition described in subsection
(a)if— the acquisition is a prohibited merger; the acquisition is likely to harm the competitive process or create or help maintain a monopoly, a monopsony, market power, or unfair methods of competition, as determined by the Federal Trade Commission or the Assistant Attorney General, respectively; a party to the acquisition (or its ultimate parent entity)— is a dominant firm; and has consummated 2 or more acquisitions in any relevant market during the preceding 5-year period; a relevant agency objects to the acquisition on the basis of a substantive justification as described in subsection (l); during the waiting period or during the 10-year period ending on the date on which notification under subsection
(a)is filed, a party to the acquisition engaged in any disqualifying behavior; or the Federal Trade Commission or the Assistant Attorney General, respectively, determines that— all information and documentary materials have not been supplied; or the supplied information is not adequately responsive. The decision of the Federal Trade Commission or the Assistant Attorney General to reject an acquisition under subsection
(a)shall— be made publicly available before the date on which the waiting period expires or is terminated; identify which of the 5 categories of rejection was or were the basis of the decision and include, as applicable— a statement explaining why the acquisition is a prohibited merger; a substantive justification for the decision, including— an explanation of how the acquisition is likely to harm the competitive process or create or help maintain a monopoly, a monopsony, market power, or unfair methods of competition, including (as applicable or relevant) an analysis of how the acquisition would likely harm workers (including significant layoffs or harms to existing collective bargaining agreements, retirees, worker benefits and compensation, or labor conditions), consumers (including patients, renters, and students), customer choice, sellers, small or minority-owned businesses (including farms and ranches), local, rural, or low-income communities, communities of color, privacy, quality (including health and safety), entrepreneurship, or innovation; an explanation of why, in light of the factors described in item (aa), the acquisition was rejected; and a response to public comments that addresses major counterarguments to the justification for the decision to reject; a statement explaining which party is a dominant firm and identifying 2 or more consummated acquisitions by the party in a relevant market during the preceding 5-year period; the substantive justification received from an objecting relevant agency in accordance with subsection (l); a statement identifying any disqualifying behavior of a party during the waiting period or during the 10-year period ending on the date on which notification is filed under subsection (a); or an explanation of how the information and documentary materials submitted by the parties were not adequately responsive; and have no precedential value for any future decisions regarding whether to reject an acquisition by the same or different persons. Any party to an acquisition rejected by the Federal Trade Commission or the Assistant Attorney General under this section may bring an action under this paragraph in the appropriate district court of the United States to challenge the decision of the Federal Trade Commission or the Assistant Attorney General to reject the acquisition, and no other person or entity shall have a cause of action under this paragraph. A decision of the Federal Trade Commission or the Assistant Attorney General to reject an acquisition under this section shall be considered a matter of discretion, and the reviewing court shall hold unlawful and set aside the decision only if the decision’s findings and conclusions are found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with this section. The parties to a rejected acquisition may not file suit to challenge the decision more than 60 days after the decision is made public. In judicial proceedings challenging a decision to reject an acquisition, a court shall give deference to any definition of a relevant market or market share alleged by the Federal Trade Commission or the Assistant Attorney General and may not offset any anticompetitive harms alleged by the Federal Trade Commission or the Assistant Attorney General with any procompetitive benefits. Nothing in this subsection may be construed to preclude the Federal Trade Commission or the Assistant Attorney General from reviewing or investigating a nonreportable acquisition before or after its consummation. ; and by striking subsection (f). Section 7A(d) of the Clayton Act ( 15 U.S.C. 18a(d) ) is amended— in paragraph (1), by striking and at the end; by redesignating paragraph
(2)as paragraph (5); and by inserting after paragraph
(1)the following: shall require that the notification required under subsection
(a)include, in addition to the information described in paragraph (1)— basic information on the acquiring person and the person whose voting securities or assets are being acquired, including— the names of each executive officer and board member of each person; the annual revenues of each person for each year of the 5-year period ending on the date on which the notification will be filed; all lines of business, assets, and investments of each person; all data assets of each person; all intellectual-property assets of each person, including patents, copyrights, and trademarks; all trade secrets, as defined in section 1839 of title 18, United States Code, of each person; contact information for the 10 largest customers of each person (as applicable); and contact information for the 10 largest suppliers of each person (as applicable); the stated justification for the acquisition, including— what, if any, nonpublic information was used to inform a decision to enter the acquisition; what, if any, publicly available information was processed using artificial intelligence, algorithms, or other automated data processing systems to inform a decision to enter the acquisition; and if relevant, how the failing-firm defense applies, including a list of good-faith efforts to elicit reasonable alternative offers and reasons the offers were unsuccessful; any proposed plans to benefit workers, consumers, customer choice, sellers, small or minority-owned businesses (including farms and ranches), local, rural, or low-income communities, communities of color, privacy, quality, entrepreneurship, and innovation, including plans to— use new expertise, resources, and additional revenues to reduce prices; increase quality; increase privacy; increase worker pay, benefits, and conditions; invest in local, rural, or low-income communities or communities of color; and invest in research and development; the projected impact of the acquisition on the competitive process, workers (including significant layoffs or harms to existing collective bargaining agreements, retirees, worker benefits and compensation, or labor conditions), consumers (including patients, renters, and students), customer choice, sellers, small and minority-owned businesses (including farms and ranches), local, rural, and low-income communities, communities of color, privacy, quality (including health and safety), entrepreneurship, and innovation; a list of all other significant competitors (including entrants or potential entrants) and competing products; estimated market shares in the relevant markets of the acquisition for each person and any significant competitors identified in subparagraph
(E)for the current year and each of the previous 2 years; a list of every merger, acquisition, sale of assets, or divestiture consummated by each party during the preceding 10-year period, whether or not the party was required to file a notification under subsection (a); a list of each person or financial institution that provided or will provide financing for the acquisition (including debt, equity, and all other sources) and the amount provided; an affirmation from each party that it has not engaged in any disqualifying behavior during the 10-year period ending on the date on which the notification will be filed; a list of States that would be impacted by the acquisition; a list of Federal agencies with substantial regulatory authority over each party (or the persons or financial institutions involved with financing the acquisition); and whether any party (or its ultimate parent entity) is a dominant firm; shall evaluate the stated justification for the acquisition to determine if the justification comports with the information provided under paragraph (2); shall determine if the acquisition or combination of data assets described in paragraph
(2)would violate the antitrust laws, including if the acquisition or combination of data assets is likely to harm the competitive process or create or help maintain a monopoly, a monopsony, market power, or unfair methods of competition; and . Section 7A(e) of the Clayton Act ( 15 U.S.C. 18a(e) ) is amended— by striking 30 each place the term appears and inserting 120 ; and by striking 15 each place the term appears and inserting 60 . Section 7A of the Clayton Act ( 15 U.S.C. 18a ) is amended by adding at the end the following: Not later than 7 days after the date on which information or documentary material relevant to a proposed acquisition is filed with the Federal Trade Commission and Assistant Attorney General under this section, the Federal Trade Commission and the Assistant Attorney General shall submit to each State attorney general of any State identified by the parties under subsection (d), and to any State attorney general of a State that the Federal Trade Commission or the Assistant Attorney General determines would be impacted by the acquisition— notification of the proposed acquisition; and a copy of all documents submitted in relation to the acquisition. For each acquisition filed under subsection (a), the Federal Trade Commission or the Assistant Attorney General shall— send notice of the proposed acquisition to any Federal agency— required to review the acquisition under Federal law; determined to have substantial regulatory authority over a party involved in the acquisition; or identified by the parties under subsection (d); provide to each Federal agency notified under subparagraph
(A)a copy of all documents submitted in relation to the acquisition not later than 30 days after the date on which the waiting period described in subsection (b)(1) begins; and reject the acquisition if— any Federal agency with substantial regulatory authority objects to the acquisition on the basis that the acquisition would harm the competitive process or materially harm the interests of the United States as a customer, trading partner, or stakeholder; the Office of Advocacy of the Small Business Administration objects to the acquisition on the basis that the acquisition would materially harm small businesses (including farms and ranches); the Minority Business Development Agency of the Department of Commerce objects to the acquisition on the basis that the acquisition would materially harm minority-owned businesses (including farms and ranches); or the National Labor Relations Board objects to the acquisition on the basis that— the acquisition would help create or maintain a monopsony or unfair labor practice (including the refusal of the parties to preserve, expand, or effectuate collective bargaining agreements covering workers impacted by the acquisition, as applicable); or the acquisition would materially harm workers (including significant layoffs or harms to existing collective bargaining agreements, retirees, worker benefits and compensation, or labor conditions). If a relevant agency objects to an acquisition under paragraph (3), the relevant agency shall submit to the Federal Trade Commission or the Assistant Attorney General, as applicable, a substantive justification for the objection before the date on which the waiting period expires or is terminated. No individual who certifies a notification filed under subsection
(a)on behalf of an entity may, within the notification or during the waiting period, knowingly— falsify, conceal, or cover up by any trick, scheme, or device a material fact; make any materially false, fictitious, or fraudulent statement or representation; or make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. Any individual who violates subparagraph
(A)shall be fined not more than $10,000,000, imprisoned for not more than 5 years, or both. A chief executive officer of an entity shall be deemed liable for any violation of paragraph
(1)committed by an officer or employee of the entity if the chief executive officer knew or should have known of the violation. An entity described in paragraph
(1)shall be fined, for each violation, not more than 5 percent of the revenues that the ultimate parent entity of the entity earned during the 1-year period ending on the date on which the notification is filed. . Section 5(a)(2) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(2) ) is amended by striking , except banks and all that follows through said Act, . Not later than 1 year after the date of enactment of this Act, the Federal Trade Commission and the Department of Justice shall promulgate regulations to further define harms to the competitive process, including harms to workers, consumers, customer choice, sellers, small and minority-owned businesses, local, rural, and low-income communities, communities of color, privacy, quality, entrepreneurship, and innovation.
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- 15 USC 80b–3
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Sec. 4
Banning all prohibited mergers and strengthening antitrust agency enforcement
Cite15 USC 80b–3
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