II 117TH CONGRESS 1ST SESSION S. 2039 To improve the antitrust laws, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 14, 2021 Mr. LEE (for himself and Mr. GRASSLEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To improve the antitrust laws, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Tougher Enforcement 4 Against Monopolists Act’’ or the ‘‘TEAM Act’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents for this Act is as follows: 7 Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Definitions. TITLE I—ONE AGENCY Sec. 101. Short title. Sec. 102. Findings. Sec. 103. Definitions. VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 2039 IS Sec. 104. Transfer of antitrust enforcement functions from the Federal Trade Commission to the Department of Justice. Sec. 105. Removal of review authority from Federal Communications Commis- sion and State entities. Sec. 106. Technical and conforming amendments. Sec. 107. Effective date. TITLE II—MERGERS Sec. 201. Premerger notification filing fees. Sec. 202. Merger presumptions. Sec. 203. Merger notification requirements. TITLE III—COMPETITION POLICY Sec. 301. Competitive impact statement. Sec. 302. Written explanations of enforcement and non-enforcement actions. Sec. 303. Studies. Sec. 304. Monopsony guidelines. TITLE IV—RESTORING BOARD IMMUNITY Sec. 401. Short title. Sec. 402. Statement of findings and purpose. Sec. 403. Definitions. Sec. 404. Antitrust immunity. Sec. 405. Active supervision. Sec. 406. Judicial review. TITLE V—OTHER IMPROVEMENTS TO ANTITRUST LAWS Sec. 501. Overturning Illinois Brick and Hanover Shoe. Sec. 502. Limitations on implied immunity from the antitrust laws. Sec. 503. Prejudgment interest. Sec. 504. Safe harbor for efforts to facilitate data portability and interoper- ability. Sec. 505. Study of assigning all antitrust cases to certain district courts of the United States. Sec. 506. Balancing harm and benefits. Sec. 507. Actions on behalf of consumers under Sherman Act. Sec. 508. Civil fines for knowing violations of the antitrust laws. Sec. 509. Direct evidence of intent to avoid or restrict competition. Sec. 510. Limit on contracting. Sec. 511. Prohibiting discrimination in distribution. Sec. 512. Authorizations of appropriations. SEC. 3. DEFINITIONS. 1 In this Act: 2 (1) ANTITRUST LAWS.—The term ‘‘antitrust 3 laws’’ means— 4 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 2039 IS (A) the Sherman Act (15 U.S.C. 1 et seq.); 1 and 2 (B) the Clayton Act (15 U.S.C. 12 et 3 seq.). 4 (2) ASSISTANT ATTORNEY GENERAL.—The 5 term ‘‘Assistant Attorney General’’ means the As- 6 sistant Attorney General for the Antitrust Division 7 of the Department of Justice. 8 (3) EXECUTIVE AGENCY.—The term ‘‘Executive 9 agency’’ has the meaning given that term in section 10 105 of title 5, United States Code. 11 TITLE I—ONE AGENCY 12 SEC. 101. SHORT TITLE. 13 This title may be cited as the ‘‘One Agency Act’’. 14 SEC. 102. FINDINGS. 15 Congress finds the following: 16 (1) It is the policy of the United States to pro- 17 mote the vigorous, effective, and efficient enforce- 18 ment of the antitrust laws. 19 (2) The overlapping antitrust enforcement ju- 20 risdiction of the Department of Justice and the Fed- 21 eral Trade Commission has wasted taxpayer re- 22 sources, hampered enforcement efforts, and caused 23 uncertainty for businesses and consumers in the 24 United States. 25 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 2039 IS (3) It is preferable that primary Federal re- 1 sponsibility for enforcing the antitrust laws of the 2 United States be given to a single agency, and the 3 Department of Justice is best suited to do so. 4 SEC. 103. DEFINITIONS. 5 In this title: 6 (1) COMMISSION.—The term ‘‘Commission’’ 7 means the Federal Trade Commission. 8 (2) EFFECTIVE DATE.—The term ‘‘effective 9 date’’ means the date described in section 107. 10 (3) FTC ANTITRUST ACTION.—The term ‘‘FTC 11 antitrust action’’ means any litigation or administra- 12 tive proceeding initiated by the Commission that— 13 (A) is supervised by an FTC Antitrust 14 Unit; or 15 (B) relates to the antitrust laws or section 16 5 of the Federal Trade Commission Act (15 17 U.S.C. 45), as in effect on the day before the 18 effective date. 19 (4) FTC ANTITRUST ASSETS.—The term ‘‘FTC 20 antitrust assets’’— 21 (A) means all electronic or tangible records 22 and files relating to matters supervised, as well 23 as any physical assets or equipment owned and 24 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 2039 IS used or retained, by an FTC Antitrust Unit; 1 and 2 (B) does not include any office space or 3 leased facilities or equipment. 4 (5) FTC ANTITRUST EMPLOYEE.—The term 5 ‘‘FTC antitrust employee’’ means an individual who 6 on the day before the effective date is employed by 7 the Federal Trade Commission and assigned to an 8 FTC Antitrust Unit. 9 (6) FTC ANTITRUST FUNCTION.—The term 10 ‘‘FTC antitrust function’’ means a function of the 11 Commission relating to the antitrust laws or unfair 12 methods of competition under section 5 of the Fed- 13 eral Trade Commission Act (15 U.S.C. 45), as in ef- 14 fect on the day before the effective date. 15 (7) FTC ANTITRUST FUNDING.—The term 16 ‘‘FTC antitrust funding’’ means— 17 (A) all amounts appropriated before the ef- 18 fective date by an Act of Congress to the Fed- 19 eral Trade Commission that are designated, by 20 Congress or the Commission, for an FTC Anti- 21 trust Unit; and 22 (B) all fees collected by the Federal Trade 23 Commission before the effective date under sec- 24 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 2039 IS tion 7A of the Clayton Act (15 U.S.C. 18a) and 1 rules issued under that section. 2 (8) FTC ANTITRUST UNIT.—The term ‘‘FTC 3 Antitrust Unit’’ means— 4 (A) the Bureau of Competition of the 5 Commission; and 6 (B) each division of the Bureau of Eco- 7 nomics of the Commission that is designated to 8 work on FTC antitrust actions. 9 (9) FUNCTION.—The term ‘‘function’’ means 10 any duty, obligation, power, authority, responsibility, 11 right, privilege, activity, or program. 12 (10) TRANSITION PERIOD.—The term ‘‘transi- 13 tion period’’ means the period beginning on the ef- 14 fective date of this title and ending on the later of— 15 (A) the date that is 1 year after the effec- 16 tive date of this title; or 17 (B) the date that is 180 days after the 18 date described in subparagraph (A), which may 19 be extended by the Assistant Attorney General 20 once for an additional 180 days, if the Assist- 21 ant Attorney General determines that a period 22 longer than the period described in subpara- 23 graph (A) is necessary to avoid harm to the in- 24 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 2039 IS terests of the United States or the effective en- 1 forcement of the antitrust laws. 2 SEC. 104. TRANSFER OF ANTITRUST ENFORCEMENT FUNC- 3 TIONS FROM THE FEDERAL TRADE COMMIS- 4 SION TO THE DEPARTMENT OF JUSTICE. 5 (a) TRANSFER OF FUNCTIONS.— 6 (1) IN GENERAL.—Except as provided in para- 7 graph (3)(D), there shall be transferred to the De- 8 partment of Justice all FTC antitrust functions, 9 FTC antitrust employees, FTC antitrust assets, and 10 FTC antitrust funding on the earlier of— 11 (A) the date determined by the Assistant 12 Attorney General under paragraph (2)(B); or 13 (B) the end of the transition period. 14 (2) REQUIREMENT.—The Assistant Attorney 15 General, taking care to minimize disruption to ongo- 16 ing enforcement matters and in consultation as nec- 17 essary with the Attorney General, the Office of Per- 18 sonnel Management, the General Services Adminis- 19 tration, and the Chairman of the Commission, 20 shall— 21 (A) take all necessary actions to complete 22 implementation of this title before the end of 23 the transition period; and 24 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 2039 IS (B) determine the dates certain, which 1 may not be earlier than the effective date nor 2 later than the end of the transition period, on 3 which the transfers under paragraph (1) shall 4 occur. 5 (3) PERSONNEL.— 6 (A) ASSIGNMENT.—An FTC antitrust em- 7 ployee transferred to the Department of Justice 8 under this title shall be assigned to the Anti- 9 trust Division of the Department of Justice. 10 (B) EFFECT ON PERSONNEL.—Except as 11 provided in subparagraph (C), the transfer 12 under this title of an FTC antitrust employee 13 shall not cause the employee to be separated or 14 reduced in grade or compensation for 1 year 15 after the transfer date. 16 (C) EXECUTIVE SCHEDULE.—Notwith- 17 standing subparagraph (B), the Assistant At- 18 torney General may appoint an FTC antitrust 19 employee in a Senior Executive Service position, 20 as defined in section 3132 of title 5, United 21 States Code, to a position within the Antitrust 22 Division rate payable for a position at level 15, 23 step 10 of the General Schedule. 24 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 2039 IS (D) VOLUNTARY NONTRANSFER OF PER- 1 SONNEL.—Notwithstanding paragraph (1), an 2 FTC antitrust employee may, with the consent 3 of the Chairman of the Commission, elect to re- 4 main an employee of the Commission assigned 5 to a non-FTC Antitrust Unit. 6 (E) OFFICE SPACE.—Upon request from 7 the Assistant Attorney General, and in con- 8 sultation as necessary with the General Services 9 Administration, the Commission shall allow the 10 Department of Justice to use any office space 11 or leased facilities previously used by FTC anti- 12 trust employees until such time as the Depart- 13 ment of Justice may provide its own office 14 space or facilities. After the transfer of FTC 15 antitrust funding to the Department of Justice, 16 the Department of Justice shall compensate the 17 Commission for the costs of the use of such of- 18 fice space or leased facilities. 19 (F) RESTRUCTURING.—Notwithstanding 20 any other provision of law, the Assistant Attor- 21 ney General is authorized to restructure the 22 Antitrust Division before the expiration of the 23 transition period, as the Assistant Attorney 24 General determines is appropriate, to carry out 25 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 2039 IS the purposes of this title and accomplish the ef- 1 ficient enforcement of the antitrust laws. 2 (4) ANTITRUST ACTIONS.— 3 (A) IN GENERAL.—As soon as is reason- 4 ably practicable during the transition period, all 5 open investigations, litigations, matters, or 6 other proceedings being supervised by an FTC 7 antitrust unit and relating to the antitrust laws 8 or unfair methods of competition under section 9 5 of the Federal Trade Commission Act (15 10 U.S.C. 45), as in effect on the day before the 11 effective date, shall be transferred to and as- 12 sumed by the Department of Justice. 13 (B) HANDLING OF CERTAIN ADMINISTRA- 14 TIVE PROCEEDINGS.—Administrative pro- 15 ceedings that were initiated by the Commission, 16 were unresolved as of the first day of the tran- 17 sition period, and relate to enforcement of the 18 antitrust laws or unfair methods of competition 19 under section 5 of the Federal Trade Commis- 20 sion Act (15 U.S.C. 45), as in effect on the day 21 before the effective date, shall be treated in the 22 following manner: 23 (i) Any such proceeding pending be- 24 fore an administrative law judge shall be 25 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 2039 IS dismissed without prejudice and the matter 1 shall be referred to the Assistant Attorney 2 General. 3 (ii) For any such proceeding pending 4 on appeal before the Commission, the ad- 5 ministrative appeal shall cease, the ruling 6 of the administrative law judge shall be 7 treated as the final decision of the Com- 8 mission, and the Court of Appeals for the 9 District of Columbia Circuit shall have ju- 10 risdiction over any appeal therefrom. 11 (C) INTERVENTION.— 12 (i) IN GENERAL.—In any FTC anti- 13 trust action before a court of the United 14 States as of the first day of the transition 15 period, the court shall allow the Depart- 16 ment of Justice to— 17 (I) intervene and assume rep- 18 resentation of the Federal Govern- 19 ment from the Commission; and 20 (II) amend any complaint origi- 21 nally brought by the Commission for 22 the purpose of alleging violations of 23 statutes other than the Federal Trade 24 VerDate Sep 11 2014 06:46 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2039.IS S2039 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 2039 IS Commission Act as necessary and 1 where appropriate. 2 (ii) SCHEDULING ORDER UPON RE- 3 QUEST.—Upon the request of the Commis- 4 sion or the Department of Justice, and in 5 consultation with all parties to the matter, 6 the court shall issue an order making such 7 scheduling adjustments as necessary to fa- 8 cilitate the transfer of prosecutorial re- 9 sponsibilities under this subparagraph. 10 (D) CONSENT DECREES.—At the end of 11 the transition period, the Department of Justice 12 shall have sole authority to enforce violations 13 of, approve modifications to, or rescind any con- 14 sent decree entered into by the Commission be- 15 fore the effective date that concerns conduct al- 16 leged to violate the antitrust laws or unfair 17 methods of competition under section 5 of the 18 Federal Trade Commission Act (15 U.S.C. 45), 19 as in effect on the day before the effective date. 20 (5) AUTHORITY TO CONDUCT INVESTIGATIVE 21 STUDIES.— 22 (A) REPORTS OF PERSONS, PARTNER- 23 SHIPS, AND CORPORATIONS.— 24 VerDate [Text truncated for display. 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