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S. 1811: Merger Enforcement Improvement Act

The text of the bill below is as of Sep 14, 2017 (Introduced).


II

115th CONGRESS

1st Session

S. 1811

IN THE SENATE OF THE UNITED STATES

September 14, 2017

(for herself, Mr. Leahy, Mr. Franken, Mr. Blumenthal, Mr. Booker, Mr. Durbin, Ms. Hirono, Mr. Markey, Mrs. Gillibrand, and Ms. Baldwin) 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 antitrust enforcement resources, and improving the information provided to antitrust enforcers.

1.

Short title

This Act may be cited as the Merger Enforcement Improvement Act.

2.

Premerger notification filing fees

Section 605 of Public Law 101–162 (15 U.S.C. 18a note) is amended—

(1)

in subsection (b)—

(A)

in paragraph (1)—

(i)

by striking $45,000 and inserting $30,000;

(ii)

by striking $100,000,000 and inserting $161,500,000;

(iii)

by striking 2004 and inserting 2018; and

(iv)

by striking 2003 and inserting 2017;

(B)

in paragraph (2)—

(i)

by striking $125,000 and inserting $100,000;

(ii)

by striking $100,000,000 and inserting $161,500,000;

(iii)

by striking but less and inserting but is less; and

(iv)

by striking and at the end;

(C)

in paragraph (3)—

(i)

by striking $280,000 and inserting $250,000; and

(ii)

by striking the period at the end and inserting but is less than $1,000,000,000 (as so adjusted and published);; and

(D)

by adding at the end the following:

(4)

$400,000 if the aggregate total amount determined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $1,000,000,000 (as so adjusted and published) but is less than $2,000,000,000 (as so adjusted and published);

(5)

$800,000 if the aggregate total amount determined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $2,000,000,000 (as so adjusted and published) but is less than $5,000,000,000 (as so adjusted and published); and

(6)

$2,250,000 if the aggregate total amount determined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $5,000,000,000 (as so adjusted and published).

; and

(2)

by adding at the end the following:

(c)
(1)

For each fiscal year commencing after September 30, 2018, the filing fees in this section shall be increased as of October 1 each year by an amount equal to the percentage increase, if any, in the Producer Price Index, as determined by the Department of Commerce or its successor, for the year then ended over the level so established for the year ending September 30, 2017.

(2)

As soon as practicable, but not later than January 31 of each year, the Federal Trade Commission shall publish the adjusted amounts required by this section.

(3)

The Federal Trade Commission shall not adjust amounts required by this section if the percentage increase described in paragraph (1) is less than 1 percent.

(4)

An amount adjusted under this section shall be rounded to the nearest multiple of $5,000.

.

3.

Post-settlement data

Section 7A of the Clayton Act (15 U.S.C. 18a) is amended by adding at the end the following:

(l)
(1)

Each person who enters into an agreement with the Federal Trade Commission or the United States to resolve a proceeding brought under the antitrust laws or under the Federal Trade Commission Act (15 U.S.C. 41 et seq.) regarding an acquisition with respect to which notification is required under this section shall, on an annual basis during the 5-year period beginning on the date on which the agreement is entered into, submit to the Federal Trade Commission or the Assistant Attorney General, as applicable, information sufficient for the Federal Trade Commission or the United States, as applicable, to assess the competitive impact of the acquisition, including—

(A)

the pricing, availability, and quality of any product or service, or inputs thereto, in any market, that was covered by the agreement;

(B)

the source, and the resulting magnitude and extent, of any cost-saving efficiencies or any consumer benefits that were claimed as a benefit of the acquisition and the extent to which any cost savings were passed on to consumers; and

(C)

the effectiveness of any divestitures or any conditions placed on the acquisition in preventing or mitigating harm to competition.

(2)

The requirement to provide the information described in paragraph (1) shall be included in an agreement described in that paragraph.

(3)

The Federal Trade Commission, with the concurrence of the Assistant Attorney General, by rule in accordance with section 553 of title 5, United States Code, and consistent with the purposes of this section—

(A)

shall require that the information described in paragraph (1) be in such form and contain such documentary material and information relevant to a proposed acquisition as is necessary and appropriate to enable the Federal Trade Commission and the Assistant Attorney General to assess the competitive impact of the acquisition under paragraph (1); and

(B)

may—

(i)

define the terms used in this subsection;

(ii)

exempt, from the requirements of this section, information not relevant in assessing the competitive impact of the acquisition under paragraph (1); and

(iii)

prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section.

.

4.

Federal Trade Commission study

Not later than 2 years after the date of enactment of this Act, the Federal Trade Commission, in consultation with the Securities and Exchange Commission, shall conduct and publish a study, using any compulsory process necessary, relying on public data and information if available and sufficient, and incorporating public comment on—

(1)

the extent to which an institutional investor or related institutional investors have ownership or control interests in competitors in moderately concentrated or concentrated markets;

(2)

the economic impacts of such overlapping ownership or control; and

(3)

the mechanisms by which an institutional investor could affect competition among the companies in which it invests and whether such mechanisms are prevalent.

5.

GAO studies

(a)

In general

Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall—

(1)

conduct a study to assess the success of merger remedies required by the Department of Justice or the Federal Trade Commission in consent decrees entered into since 6 years prior to the date of enactment of this Act, including the impact on maintaining competition, a comparison of structural and conduct remedies, and the viability of divested assets; and

(2)

conduct a study on the impact of mergers and acquisitions on wages, employment, innovation, and new business formation.

(b)

Update

The Comptroller General of the United States shall—

(1)

update the study under paragraph (1) 3 years and 6 years after the date of enactment of this Act based on the information provided under section 7A(l) of the Clayton Act, as added by section 3 of this Act; and

(2)

identify specific remedies or alleged merger benefits that require additional information or research.

6.

Authorization of appropriations

(a)

In general

There is authorized to be appropriated for fiscal year 2018—

(1)

$180,606,000 for the Antitrust Division of the Department of Justice; and

(2)

$342,000,000 for the Federal Trade Commission.