Sec. 3. Definitions
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/bill/117/s/3847/is/section-3·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The first section of the Clayton Act ( 15 U.S.C. 12 ) is amended by striking subsections
(a)and
(b)and inserting the following: In this Act: The term acquisition means— any merger; any direct or indirect acquisition of the whole or any part of the assets, stock, or other share capital or the use of such stock by the voting or granting of proxies or otherwise; or any tender offer, joint venture, deal, or other similar transaction subject to section 7 or 7A. The term antitrust agency means— the Federal Trade Commission; or the Antitrust Division of the Department of Justice. The term antitrust laws means— the Sherman Act ( 15 U.S.C. 1 et seq. ); the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ); this Act; and any other similar Federal or State law designed or intended to prohibit, restrict, or regulate actions having the purpose or effect of monopolization, restraint of trade, or lessening competition (including through merger or acquisition). The term critical trading partner means a person that has the ability to restrict, impede, or foreclose access to its inputs, customers, partners, goods, services, technology, platform, facilities, or tools in a way that harms the competitive process or limits the ability of the customers or suppliers of the person to carry out business effectively. The term disqualifying behavior means— violating an order issued by an antitrust agency; entering into any nonprosecution agreement or deferred prosecution agreement with the Department of Justice; paying a fine, penalty, or settlement (including class-action settlements) exceeding $1,000,000 to an antitrust agency, a State or county, or private party if the underlying dispute is based on a violation of antitrust law; being convicted of any felony by a State court or court of the United States; or being found liable for violating any antitrust law by a State court or court of the United States. The term dominant firm means a person that— has annual revenues exceeding $5,000,000,000 (as adjusted and published for each fiscal year beginning after September 30, 2022, in the same manner as provided in section 8(a)(5) to reflect the percentage change in the gross national product for such fiscal year compared to the gross national product for the year ending September 30, 2021); 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 party or the ultimate parent entity of such party has greater than $10,000,000,000 (as so adjusted and published) in capitalization, commitments, or assets under management; or has greater than 20 percent of any relevant market. The term failing-firm defense means a defense that an acquisition is unlikely to be anticompetitive because— the party being acquired is in danger of immediate insolvency; the party being acquired is not able to reorganize successfully under chapter 11 of title 11, United States Code; the party being acquired has made unsuccessful good-faith efforts to elicit reasonable alternative offers that would keep the assets of the party in the relevant markets and pose a less severe danger to competition than does the proposed acquisition; and the acquiring party is the only available purchaser. The term labor market includes— commuting zones, as defined by the Department of Agriculture; the 6-digit Standard Occupational Classification codes for a particular job classification; and other definitions as the Federal Trade Commission and the Department of Justice may promulgate by regulation. The term nonreportable acquisition means any acquisition for which the parties are not required to file notification under section 7A. The term party means, for a given acquisition, a person required to file notification under section 7A. The term person has the meaning given the term in section 8 of the Sherman Act ( 15 U.S.C. 7 ). The term platform means any person’s website, online or mobile application, operating system, digital assistant, online advertising exchange, or online service that— operates or provides the main interface between different users or market participants, such as individuals, advertisers, or providers of content, services, and goods; and allows for exchanges of at least some goods, services, or content that the person does not own. The term platform conflict of interest means the conflict of interest that arises when a person owns or controls a platform while simultaneously— owning or controlling a line of business that competes against third parties on that platform, if the person has the ability and incentive to, or does, advantage its own business on the platform over third-party competitors on the platform or disadvantage the business of third-party competitors on the platform; or representing both buyers and sellers for transactions or business on the platform. The term prohibited merger means an acquisition— in which— the Herfindahl-Hirschman Index would be greater than 1,800 in any relevant market; and the increase in the Herfindahl-Hirschman Index would be more than 100 in such relevant market; in which the acquiring person would have a market share of greater than 33 percent of any relevant market (excluding labor markets) or greater than 25 percent of any labor market as an employer; or that would result in the acquiring person holding an aggregate total amount of the voting securities and assets of the acquired person in excess of $5,000,000,000 (as so adjusted and published). The term relevant agency means the Office of Advocacy of the Small Business Administration, the Minority Business Development Agency of the Department of Commerce, the National Labor Relations Board, any Federal agency required to review an acquisition under Federal law, or any Federal agency with substantial regulatory authority over a party involved in an acquisition (including persons or financial institutions involved with financing the acquisition) as identified by the parties, the Federal Trade Commission, or the Assistant Attorney General. The term relevant market — means any line of commerce, product market, service market, or labor market implicated by an acquisition; and includes a geographic area if geography limits the willingness or ability— of some customers to substitute some products; of some suppliers to serve some customers; or of some workers to provide labor. The term State attorney general has the meaning given the term in section 4G. The term ultimate parent entity has the meaning given the term in section 801.1 of title 16, Code of Federal Regulations. This Act may be cited as the . Clayton Act .
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- 15 USC 80b–3
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