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S. 1074 (117th): Trust-Busting for the Twenty-First Century Act

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The text of the bill below is as of Apr 12, 2021 (Introduced). The bill was not enacted into law.

Summary of this bill

The bill would disallow many mergers, despite having two hyphenated terms in a single bill title.

Context

Republicans have historically taken a more laissez-faire approach to business and economic matters than Democrats. But in more recent years, several of the most prominent Republicans have taken an approach alternatively described as “economic nationalism” or “economic populism,”

Spearheaded by Donald Trump but also including acolytes like Sens. Marco Rubio (R-FL) and Josh Hawley (R-MO), the ideology seeks to put the government’s thumb on the scale of business to serve conservative policy ends. In the past year, GovTrack Insider has covered several bills to this effect, including:

II

117th CONGRESS

1st Session

S. 1074

IN THE SENATE OF THE UNITED STATES

April 12, 2021

introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Sherman Act, the Clayton Act, and the Federal Trade Commission Act to promote competition in the United States, and for other purposes.

1.

Short title

This Act may be cited as the Trust-Busting for the Twenty-First Century Act.

2.

Sherman Act amendments

The Sherman Act (15 U.S.C. 1 et seq.) is amended—

(1)

in section 2 (15 U.S.C. 2)—

(A)

by striking Every and inserting (a) Every; and

(B)

by adding at the end the following:

(b)
(1)

In any case alleging a violation of this section or section 1 in which a plaintiff establishes by a preponderance of the evidence (including direct evidence) the existence of substantial market power or the anticompetitive or otherwise detrimental effects of particular practices, a plaintiff need neither define the scope of a relevant market nor establish the share of such a market controlled by the defendant.

(2)

In any case alleging a violation of this section or section 1 in which the defendant relies on alleged procompetitive effects to justify the conduct of the defendant, the defendant shall establish by clear and convincing evidence that—

(A)

the procompetitive effects of the conduct clearly outweigh the anticompetitive effects of the conduct; and

(B)

the defendant could not obtain substantially similar procompetitive effects through commercially reasonable alternatives that would involve materially lower competitive risks.

; and

(2)

in section 4 (15 U.S.C. 4)—

(A)

by striking The several and inserting (a) The several; and

(B)

by adding at the end the following:

(b)

In any action brought by the United States or the Federal Trade Commission alleging a violation of this Act, if the United States or the Federal Trade Commission establishes such a violation, the court shall order disgorgement of all profits earned by the defendant as a result of the conduct constituting that violation, except upon a showing of extraordinary good cause.

(c)

It is the policy of the United States that the principal standard for evaluating the permissibility of practices under this Act is the protection of economic competition within the United States.

.

3.

Clayton Act amendments

The Clayton Act (15 U.S.C. 12 et seq.) is amended—

(1)

in the first section (15 U.S.C. 12), by adding at the end the following:

(c)

It is the policy of the United States that the principal standard for evaluating the permissibility of practices under this Act is the protection of economic competition within the United States.

;

(2)

in section 7 (15 U.S.C. 18), by adding at the end the following:

No person with a market capitalization exceeding $100,000,000,000 (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) shall acquire, directly or indirectly, the whole or any part of the stock or other share capital or the whole or any part of the assets of 1 or more persons engaged in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition, of such stocks or assets, or of the use of such stock by the voting or granting of proxies or otherwise, may be to lessen competition in any way.

Where a preponderance of the evidence (including direct evidence) is adduced to demonstrate that the effect of an acquisition may be substantially to lessen competition or to tend to create a monopoly, a plaintiff need neither establish market shares nor the concentration of any particular market.

No acquisition shall be presumed not to substantially lessen competition or tend to create a monopoly only because the parties to the acquisition do not compete directly against one another at the time of the acquisition.

; and

(3)

in section 7a(a) (15 U.S.C. 18a(a)), in the undesignated matter following paragraph (2)(B)(ii)(III), by adding at the end the following: In the case of any transaction involving a person, partnership, or corporation designated as a dominant digital firm under section 10A of the Federal Trade Commission Act, the person, partnership, or corporation shall file notification as required by this section..

4.

Restrictions on dominant digital firms

The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is amended by inserting after section 10 the following:

10A.

Restrictions on dominant digital firms

(a)

Definitions

In this section:

(1)

Dominant digital firm

The term dominant digital firm means a person, partnership, or corporation that—

(A)

provides a website or service accessible through the internet; and

(B)

possesses dominant market power in any market related to that website or service.

(2)

Search functionality

The term search functionality means any feature or aspect of a website or service accessible through the internet that allows a user to input alphanumeric data in order to retrieve and display a ranked list of relevant results.

(b)

Designation as a dominant digital firm

(1)

In general

The Commission shall have power to designate a person, partnership, or corporation as a dominant digital firm.

(2)

Factors to be considered

In determining whether a person, partnership, or corporation possesses dominant market power under paragraph (1), the Commission shall consider factors including—

(A)

dominance of the firm in other markets and durability of the dominance;

(B)

the extent to which the firm benefits from government contracts or other privileges;

(C)

exclusivity agreements entered into by the firm;

(D)

network effects; and

(E)

any ownership stake of the firm in other entities within the supply chain of the firm.

(3)

Investigative authority

In determining whether to designate a person, partnership, or corporation as a dominant digital firm under paragraph (1), the Commission shall have power to issue investigative demands.

(c)

Requirements

(1)

In general

Any designation made by the Commission under subsection (b) shall be preceded by a notice and comment period in accordance with section 553 of title 5, United States Code, except that the required publication and service of any designation by the Commission may be made not less than 15 days before the effective date of the designation.

(2)

Judicial review

Any designation made by the Commission under subsection (b) shall be subject to judicial review pursuant to section 706 of title 5, United States Code.

(d)

Presumption as unfair or deceptive act or practice

Any acquisition by a person, partnership, or corporation designated as a dominant digital firm under this section, direct or indirect, of the whole or any part of the stock or other share capital or the whole or any part of the assets of 1 or more persons engaged in commerce or in any activity affecting commerce, where such acquisition exceeds $1,000,000 (as adjusted and published for each fiscal year beginning after September 30, 2022, in the same manner as provided in section 8(a)(5) of the Clayton Act 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) shall be presumed to be a unfair or deceptive act or practice.

(e)

Unfair or deceptive act or practice

It shall be an unfair or deceptive act or practice if a person, partnership, or corporation designated as a dominant digital firm under this section—

(1)

provides search functionality;

(2)

promotes or demotes particular search results, on the basis of whether those results are affiliated or not affiliated with the dominant digital firm; and

(3)

does not disclose such affiliation to users of the search functionality.

.