Yale School of Management

Thurman Arnold Project at Yale

Antitrust Policy and Legislation

Germany

Reform of the German Competition Act

Draft introduced January 24, 2020

Key Provisions:

  1.  New provisions on abusive practices including a rule for companies with paramount significance for competition across markets.
  2. Proposes notification thresholds for merger control.

United States of America

State

Colorado: Authority Attorney General Challenge Fed-reviewed Mergers And Antitrust  (SB20-064)

Introduced on 01/08/2020 and signed into law on 03/14/2020

Key Provision:

  1. Current law prohibits the state attorney general from challenging under state law a business merger or acquisition when the merger or acquisition has been reviewed and not challenged by a federal department, agency, or commission. The bill repeals this provision.
New York: 21st Century Antitrust Act (S8700)

Introduced on  July 8, 2020

Key Provision:

  1. Unilateral Conduct and “Abuse of Dominance.” The bill would add new provisions explicitly addressing unilateral conduct. This includes adding as an offense attempted monopolization, which is already covered under existing federal law. But the bill would also go farther, by making it illegal for “any person or persons with a dominant position in the conduct of any business, trade or commerce or in the furnishing of any service in this state to abuse that dominant position.” The bill does not define “dominant position,” nor does it specify what constitutes an “abuse.” These concepts, which are similar to existing law in the European Union, may (depending on how courts interpret them) extend beyond U.S. law concepts of monopoly power and anticompetitive conduct.
  2. Increased Penalties and Broader Criminal Enforcement. The bill also departs from existing federal and state antitrust law by criminalizing a wide range of conduct, including unilateral conduct and mere attempts, and significantly increases the penalties for violations. Criminal enforcement of the antitrust laws at the federal level has long been limited to “hardcore cartel” behavior—e.g., price fixing, bid rigging. Although unilateral conduct and monopolization offenses are technically subject to federal criminal liability, the U.S. Department of Justice has not prosecuted such offenses criminally for many years. The New York bill, however, would appear to allow for criminal enforcement of any violation of the law, subject to the discretion of the New York Attorney General—including the abuse of dominance provisions discussed above. This would represent a sharp contrast not only to existing U.S. law but also to European law, under which abuse of dominance offenses are not subject to criminal prosecution.
  3. Class Actions. Treble damages class actions are not currently available under New York antitrust law, as a result of a New York Court of Appeals decision, Sperry Crompton Corp., 8 N.Y.3d 204 (2007). This bill would overturn that rule.

Based on a summary written by Paul | Weiss

Federal

Anticompetitive Exclusionary Conduct Prevention Act (S.3426)

Introduced on March 10, 2020 by Sen. Klobuchar (D-MN), Blumenthal (D-CT) and  Booker (D-NJ)

Key Provisions:

  1. Prohibit Anticompetitive Exclusionary Conduct: Amends the Clayton Antitrust Act to prohibit “exclusionary conduct” that presents an “appreciable risk of harming competition.”
    1. Shifts the Burden of Proof so that powerful companies that have a market share of greater than 50% or that otherwise have substantial market power would have to prove that their exclusionary conduct in the markets they dominate does not present an “appreciable risk of harming competition.”
    2. Allows DOJ and FTC to seek substantial civil penalties for violations of up to 15% of total U.S. revenues or 30% of the affected U.S. revenues in addition to other remedies available under the Clayton Act.
  2. Eliminate Unnecessary “Market Definition” Requirements: Courts often require claimants to prove a relevant market to establish liability under the antitrust laws, even in the face of clear evidence of competitive harm. The bill clarifies that the antitrust laws do not require definition of a relevant market, unless the statutory language explicitly requires it to resolve the case. 
  3. Prevent Courts from Improperly Implying Antitrust Immunities: Courts have implied immunity from the antitrust laws for certain conduct based on the existence of federal regulation, in certain circumstances ignoring statutory savings clauses passed by Congress. This bill limits the ability of courts to imply antitrust immunity for regulated conduct. 
     
Food and Agribusiness Merger Moratorium and Antitrust Review Act (S.1596/H.R.2933)

Introduced on May 22, 2019 by Sen. Booker (D-NJ) and Tester (D-MT) --- Previously introduced in August 2018 and October 1999.

Key Provisions:

  1. Calls for an indefinite halt on food and agribusiness mergers and acquisitions.
  2. Sets-up a commission to study how to strengthen antitrust oversight of the farm and food sectors and publish recommended improvements to merger enforcement and antitrust rules.
     
Merger Enforcement Improvement Act (S.306)

Introduced on May 22, 2019 by Klobuchar (D-MN), Markey (D-MA),  Blumenthal (D-CT),  Hirono (D-HI),  Durbin (D-IL),  Booker (D-NJ),  Baldwin (D-WI),  King (I-ME), and  Leahy (D-VT) --- Previously introduced in September 2017.

Key Provisions:

  1. Update existing law to reflect the current economy and provide agencies with better information post-merger to ensure that merger enforcement is meeting its goals.

  2. Modernize antitrust enforcement by improving the agencies’ ability to assess the impact of merger settlements, requiring studies of new issues, adjusting merger filing fees to reflect the 21st-century economy, and providing adequate funding for antitrust agencies to meet their obligations to protect American consumers.
     

    Consolidation Prevention and Competition Promotion Act of 2019 (S.307)

    Introduced on May 22, 2019 by Klobuchar (D-MN), Markey (D-MA),  Blumenthal (D-CT),  and Booker (D-NJ) --- Previously introduced in September 2017.

Key Provisions:

  1. Strengthen the current legal standard to help stop harmful consolidation that may materially lessen competition. It would clarify that a merger could violate the statute if it gives a company “monopsony” power to unfairly lower the prices it pays or wages it offers because of lack of competition among buyers or employers.
  2. Strengthens the law to guard against harmful “mega-mergers” and deals that substantially increase market concentration, shifting the burden to the merging companies to prove that their consolidation does not harm competition.