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Sen. Klobuchar Introduces Bill to Overhaul Antitrust Enforcement

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Sen. Amy Klobuchar (D-Minn.) introduced a bill, the Anticompetitive Exclusionary Conduct Prevention (AECP) Act, that would strengthen agencies’ antitrust enforcement power and allow them to better go against large corporations. The bill is co-sponsored by Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.); it would amend the Clayton Antitrust Act of 1914. The bill is designed to “deter anticompetitive abuses that distort the competitive process and harm consumers, innovation, and new business formation.” It will forbid anticompetitive exclusionary conduct that harms competition and will make changes to advance antitrust enforcement.

“We have a major monopoly problem in this country, which harms consumers and threatens free and fair competition across our economy. Companies need to be put on notice that exclusionary behavior that threatens competition cannot continue,” Sen. Klobuchar said. “Our legislation will deter anticompetitive abuses, helping to protect the competitive markets that are critical to ensuring fair prices for products and services, spurring innovation, and preserving opportunity for American entrepreneurs.”

The AECP Act amends the Clayton Antitrust Act to ban “exclusionary conduct” if it poses an “appreciable risk of harming competition.” It shifts the burden of proof to show the lack of risk companies with a 50 percent or more market share or that have “significant market power;” they must prove their exclusionary conduct is not an “appreciable risk of harming competition.” The DOJ and FTC, which both conduct antitrust investigations, can pursue large civil penalties for any violations, including at most 15 percent of total U.S. revenue or 30 percent of the affected U.S. revenues. The bill will also remove unnecessary “market definition” requirements for antitrust enforcement in some cases unless the statute’s language clearly requires it. The AECP Act also would limit courts from “improperly implying antitrust immunities” for some anticompetitive conduct based on federal regulations.

The proposed bill is supported by top national consumer welfare and antitrust policy groups such as the American Antitrust Institute, Consumer Reports, and Public Knowledge.

“AAI supports Senator Klobuchar’s bill to strengthen U.S. law to limit harmful conduct by dominant firms -an area of antitrust that has been largely unenforced for decades,” Diana L. Moss, President, American Antitrust Institute said. “The bill will set forth clear, strong, and needed criteria for policing conduct that is designed to drive rivals from markets. It should garner broad bi-partisan support from members of Congress who seek to protect our markets, competition, consumers, and workers.”

Critics argued the bill does not go far enough. “While I think these changes are necessary and they represent a step in the right direction, they ultimately will be insufficient,” Daniel Hanley, Open Markets Institute’s policy analyst, said. “The technology companies have market dominance. Litigation for them is the cost of doing business.”

“The bill is riddled with loopholes, like creating vague standards that corporations’ well-heeled lawyers will exploit. Congress needs to make clear rules, not give vague instructions to judges to determine when a monopolist is acting improperly,” Sarah Miller, executive director of the American Economic Liberties Project said.

The bill was proposed as the DOJ and FTC are investigating Big Tech for anticompetitive conduct. Experts said the bill would improve the effectiveness of these investigations. “The legislation … introduced today would be a great first step to try to create new balances in antitrust enforcement, create new streamlined opportunities for enforcers to show their faces,” Gene Kimmelman, senior adviser at Public Knowledge said.

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