Merger Enforcement Improvement Act

II 116TH CONGRESS 1ST SESSION S. 306 To promote merger enforcement and protect competition through adjusting premerger filing fees, increasing antitrust enforcement resources, and improving the information provided to antitrust enforcers. IN THE SENATE OF THE UNITED STATES JANUARY 31, 2019 Ms. KLOBUCHAR (for herself, Mr. MARKEY, Mr. BLUMENTHAL, Ms. HIRONO, Mr. DURBIN, Mr. BOOKER, Ms. BALDWIN, Mr. KING, and Mr. LEAHY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To promote merger enforcement and protect competition through adjusting premerger filing fees, increasing anti- trust enforcement resources, and improving the informa- tion provided to antitrust enforcers. 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 ‘‘Merger Enforcement 4 Improvement Act’’. 5 VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 306 IS SEC. 2. PREMERGER NOTIFICATION FILING FEES. 1 Section 605 of Public Law 101–162 (15 U.S.C. 18a 2 note) is amended— 3 (1) in subsection (b)— 4 (A) in paragraph (1)— 5 (i) by striking ‘‘$45,000’’ and insert- 6 ing ‘‘$30,000’’; 7 (ii) by striking ‘‘$100,000,000’’ and 8 inserting ‘‘$161,500,000’’; 9 (iii) by striking ‘‘2004’’ and inserting 10 ‘‘2020’’; and 11 (iv) by striking ‘‘2003’’ and inserting 12 ‘‘2019’’; 13 (B) in paragraph (2)— 14 (i) by striking ‘‘$125,000’’ and insert- 15 ing ‘‘$100,000’’; 16 (ii) by striking ‘‘$100,000,000’’ and 17 inserting ‘‘$161,500,000’’; 18 (iii) by striking ‘‘but less’’ and insert- 19 ing ‘‘but is less’’; and 20 (iv) by striking ‘‘and’’ at the end; 21 (C) in paragraph (3)— 22 (i) by striking ‘‘$280,000’’ and insert- 23 ing ‘‘$250,000’’; and 24 (ii) by striking the period at the end 25 and inserting ‘‘but is less than 26 VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 306 IS $1,000,000,000 (as so adjusted and pub- 1 lished);’’; and 2 (D) by adding at the end the following: 3 ‘‘(4) $400,000 if the aggregate total amount 4 determined under section 7A(a)(2) of the Clayton 5 Act (15 U.S.C. 18a(a)(2)) is not less than 6 $1,000,000,000 (as so adjusted and published) but 7 is less than $2,000,000,000 (as so adjusted and 8 published); 9 ‘‘(5) $800,000 if the aggregate total amount 10 determined under section 7A(a)(2) of the Clayton 11 Act (15 U.S.C. 18a(a)(2)) is not less than 12 $2,000,000,000 (as so adjusted and published) but 13 is less than $5,000,000,000 (as so adjusted and 14 published); and 15 ‘‘(6) $2,250,000 if the aggregate total amount 16 determined under section 7A(a)(2) of the Clayton 17 Act (15 U.S.C. 18a(a)(2)) is not less than 18 $5,000,000,000 (as so adjusted and published).’’; 19 and 20 (2) by adding at the end the following: 21 ‘‘(c)(1) For each fiscal year commencing after Sep- 22 tember 30, 2020, the filing fees in this section shall be 23 increased as of October 1 each year by an amount equal 24 to the percentage increase, if any, in the Producer Price 25 VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 306 IS Index, as determined by the Department of Commerce or 1 its successor, for the year then ended over the level so 2 established for the year ending September 30, 2019. 3 ‘‘(2) As soon as practicable, but not later than Janu- 4 ary 31 of each year, the Federal Trade Commission shall 5 publish the adjusted amounts required by this section. 6 ‘‘(3) The Federal Trade Commission shall not adjust 7 amounts required by this section if the percentage increase 8 described in paragraph (1) is less than 1 percent. 9 ‘‘(4) An amount adjusted under this section shall be 10 rounded to the nearest multiple of $5,000.’’. 11 SEC. 3. POST-SETTLEMENT DATA. 12 Section 7A of the Clayton Act (15 U.S.C. 18a) is 13 amended by adding at the end the following: 14 ‘‘(l)(1) Each person who enters into an agreement 15 with the Federal Trade Commission or the United States 16 to resolve a proceeding brought under the antitrust laws 17 or under the Federal Trade Commission Act (15 U.S.C. 18 41 et seq.) regarding an acquisition with respect to which 19 notification is required under this section shall, on an an- 20 nual basis during the 5-year period beginning on the date 21 on which the agreement is entered into, submit to the Fed- 22 eral Trade Commission or the Assistant Attorney General, 23 as applicable, information sufficient for the Federal Trade 24 VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 306 IS Commission or the United States, as applicable, to assess 1 the competitive impact of the acquisition, including— 2 ‘‘(A) the pricing, availability, and quality of any 3 product or service, or inputs thereto, in any market, 4 that was covered by the agreement; 5 ‘‘(B) the source, and the resulting magnitude 6 and extent, of any cost-saving efficiencies or any 7 consumer benefits that were claimed as a benefit of 8 the acquisition and the extent to which any cost sav- 9 ings were passed on to consumers; and 10 ‘‘(C) the effectiveness of any divestitures or any 11 conditions placed on the acquisition in preventing or 12 mitigating harm to competition. 13 ‘‘(2) The requirement to provide the information de- 14 scribed in paragraph (1) shall be included in an agreement 15 described in that paragraph. 16 ‘‘(3) The Federal Trade Commission, with the con- 17 currence of the Assistant Attorney General, by rule in ac- 18 cordance with section 553 of title 5, United States Code, 19 and consistent with the purposes of this section— 20 ‘‘(A) shall require that the information de- 21 scribed in paragraph (1) be in such form and con- 22 tain such documentary material and information rel- 23 evant to a proposed acquisition as is necessary and 24 appropriate to enable the Federal Trade Commission 25 VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 306 IS and the Assistant Attorney General to assess the 1 competitive impact of the acquisition under para- 2 graph (1); and 3 ‘‘(B) may— 4 ‘‘(i) define the terms used in this sub- 5 section; 6 ‘‘(ii) exempt, from the requirements of this 7 section, information not relevant in assessing 8 the competitive impact of the acquisition under 9 paragraph (1); and 10 ‘‘(iii) prescribe such other rules as may be 11 necessary and appropriate to carry out the pur- 12 poses of this section.’’. 13 SEC. 4. FEDERAL TRADE COMMISSION STUDY. 14 Not later than 2 years after the date of enactment 15 of this Act, the Federal Trade Commission, in consulta- 16 tion with the Securities and Exchange Commission, shall 17 conduct and publish a study, using any compulsory proc- 18 ess necessary, relying on public data and information if 19 available and sufficient, and incorporating public comment 20 on— 21 (1) the extent to which an institutional investor 22 or related institutional investors have ownership or 23 control interests in competitors in moderately con- 24 centrated or concentrated markets; 25 VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 306 IS (2) the economic impacts of such overlapping 1 ownership or control; and 2 (3) the mechanisms by which an institutional 3 investor could affect competition among the compa- 4 nies in which it invests and whether such mecha- 5 nisms are prevalent. 6 SEC. 5. GAO STUDIES. 7 (a) IN GENERAL.—Not later than 18 months after 8 the date of enactment of this Act, the Comptroller General 9 of the United States shall— 10 (1) conduct a study to assess the success of 11 merger remedies required by the Department of Jus- 12 tice or the Federal Trade Commission in consent de- 13 crees entered into since 6 years prior to the date of 14 enactment of this Act, including the impact on main- 15 taining competition, a comparison of structural and 16 conduct remedies, and the viability of divested as- 17 sets; and 18 (2) conduct a study on the impact of mergers 19 and acquisitions on wages, employment, innovation, 20 and new business formation. 21 (b) UPDATE.—The Comptroller General of the 22 United States shall— 23 (1) update the study under paragraph (1) 3 24 years and 6 years after the date of enactment of this 25 VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 306 IS Act based on the information provided under section 1 7A(l) of the Clayton Act, as added by section 3 of 2 this Act; and 3 (2) identify specific remedies or alleged merger 4 benefits that require additional information or re- 5 search. 6 SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 7 (a) IN GENERAL.—There is authorized to be appro- 8 priated for fiscal year 2020— 9 (1) $180,606,000 for the Antitrust Division of 10 the Department of Justice; and 11 (2) $342,000,000 for the Federal Trade Com- 12 mission. 13 Æ VerDate Sep 11 2014 00:03 Feb 09, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S306.IS S306 pamtmann on DSKBFK8HB2PROD with BILLS