Sec. 6. Breaking up prohibited mergers; process for retrospective reviews

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Section 7A of the Clayton Act ( 15 U.S.C. 18a ) is amended by adding at the end the following: The Federal Trade Commission and the Assistant Attorney General may retrospectively review any consummated acquisition, including nonreportable acquisitions. The Federal Trade Commission and the Assistant Attorney General may coordinate the review of a consummated acquisition with any State attorney general if the State was impacted by the acquisition or any Federal agency deemed to have substantial regulatory authority over the parties to the acquisition (including persons or financial institutions involved with financing the acquisition).

The Federal Trade Commission, the Assistant Attorney General, and any coordinating State attorney general or Federal agency may use their respective compulsory processes to conduct the reviews. Upon reviewing an acquisition described in subparagraph (A), the Federal Trade Commission or the Assistant Attorney General shall order a remedy to restore competition or otherwise address the anticompetitive impacts of the acquisition (which shall include unwinding the acquisition or requiring that the acquiring person make divestitures, which, to the extent practicable, shall be specified, standalone business units or lines), if the Federal Trade Commission or the Assistant Attorney General, respectively, acting in coordination with any State attorney general or Federal agency (as applicable), determines that— the acquisition resulted in a post-acquisition market share of greater than 50 percent of any relevant market (including labor markets); the acquisition resulted in a Herfindahl-Hirschman Index greater than 2,500 in any relevant market and increased the Herfindahl-Hirschman Index by more than 200 in such relevant market; the acquisition has brought material harm to the competitive process; if applicable, the acquiring person has failed to satisfy the stated justification of the acquisition or the acquisition did not result in the benefits described in the stated justification submitted under subsection (d)(2); or the acquisition is a consummated nonreportable acquisition; and the acquisition is a prohibited merger; or after the date of enactment of this subparagraph, the acquiring person or the acquired person engaged in disqualifying behavior during the 10-year period ending on the date on which the nonreportable acquisition was consummated.

Except as provided in clause (ii), the Federal Trade Commission and the Assistant Attorney General shall immediately review every prohibited merger consummated on or after January 1, 2000, for which the parties were required to file a notification under this section. For the purposes of this subparagraph, prohibited mergers shall be defined without adjustment to any dollar amounts. The Federal Trade Commission and the Assistant Attorney General may coordinate the review of a prohibited merger with any State attorney general if the State was impacted by the prohibited merger or any Federal agency deemed to have substantial regulatory authority over the parties to the prohibited merger (including persons or financial institutions involved with financing the prohibited merger).

The Federal Trade Commission and the Assistant Attorney General shall— not later than 180 days after the date of enactment of this subsection, establish and implement a process to carry out the review required under subparagraph (A); and not later than 4 years after the date of enactment of this subsection— complete the review required under subparagraph (A); and implement the remedies required under subparagraph (B). A State attorney general of a State impacted by a consummated acquisition may review the acquisition in accordance with paragraph (1), including by using compulsory process.

Upon reviewing an acquisition described in clause (i), the State attorney general may bring an action under this clause in the appropriate district court of the United States seeking a remedy to restore competition or otherwise address the anticompetitive impacts of the acquisition (which shall include unwinding the acquisition or requiring that the acquiring person make divestitures, which, to the greatest extent practicable, shall be specified, standalone business units or lines).

The court shall grant the remedy described in subclause

(I)if the State attorney general demonstrates by a preponderance of the evidence that the remedy would have been proper under paragraph (1)(B), unless the parties to the acquisition demonstrate by clear and convincing evidence that unwinding would not have been proper under paragraph (1)(B). The court may not offset a demonstrated anticompetitive harm with a procompetitive benefit unless the benefit applies to the same population impacted by the harm. The court shall give deference to any definition of a relevant market or market share alleged by the State attorney general. A State attorney general of a State impacted by a prohibited merger may review the prohibited merger in accordance with paragraph (2), including by using compulsory process. Upon reviewing a prohibited merger described in clause (i), the State attorney general may bring an action under this clause in the appropriate district court of the United States seeking a remedy to restore competition or otherwise address the anticompetitive impacts of the prohibited merger (which shall include unwinding the prohibited merger or requiring that the acquiring person make divestitures, which, to the greatest extent practicable, shall be specified, standalone business units or lines). The court shall grant the remedy described in subclause

(I)if the State attorney general demonstrates by a preponderance of the evidence that imposing the remedy would have been proper under paragraph (2)(B), unless the parties to the prohibited merger demonstrate by clear and convincing evidence that imposing the remedy would not have been proper under paragraph (2)(B). The court may not offset a demonstrated anticompetitive harm with a procompetitive benefit unless the benefit applies to the same population impacted by the harm. The court shall give deference to any definition of a relevant market or market share alleged by the State attorney general. In addition to any other harms to the competitive process that may be determined or established, the Federal Trade Commission, the Assistant Attorney General, or a State attorney general may also determine or establish that a prohibited merger has brought material harm to the competitive process if— any party (or its ultimate parent entity) was a dominant firm; and another party was a nascent competitor or maverick; another party was a critical trading partner in the supply chains or business ecosystems of the parties; or the acquisition created a platform conflict of interest. Any party to an acquisition reviewed by the Federal Trade Commission or the Assistant Attorney General under paragraph

(1)or

(2)may bring an action under this paragraph in the appropriate district court of the United States to challenge a decision of the Federal Trade Commission or the Assistant Attorney General made under this subsection to order a remedy, and no other person or entity shall have a cause of action under this paragraph. A decision by the Federal Trade Commission or the Assistant Attorney General to order a remedy 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 court may not offset an anticompetitive harm alleged by the Federal Trade Commission or the Assistant Attorney General with a procompetitive benefit unless the benefit applies to the same population impacted by the harm. The 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. All findings and decisions (including decisions to initiate a retrospective review and decisions whether or not to order a remedy) described in this subsection shall be made publicly available. Any decision to order a remedy shall include a substantive justification. Not later than 180 days after the date of enactment of this subsection, the Federal Trade Commission and the Assistant Attorney General shall— establish procedures for the stakeholders of a consummated acquisition to submit complaints regarding any adverse impacts of the acquisition to the Federal Trade Commission, the Assistant Attorney General, and their respective State attorneys general; and establish guidelines for when complaints received under subparagraph

(i)will trigger a mandatory retrospective review under paragraph (1). .

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U.S. Code

Premerger notification and waiting period
§ 18a

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Sec. 6

Breaking up prohibited mergers; process for retrospective reviews

U.S.C.§ 18a

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