United States of America: Introduction of bill to restore competition in digital markets

On 4 February 2021, the Competition and Antitrust Law Enforcement Reform Act was introduced in the U.S. Senate by Senator Klobuchar (D-MN), Blumenthal (D-CT), Booker (D-NJ), Markey (D-MA) and Schatz (D-HI). The act aims to ensure competition in digital markets by reinvigorating antitrust laws to reinforce the prohibition of anti-competitive behaviour. Specifically, the act proposes the addition of exclusionary conduct to the Clayton Act. Furthermore, the threshold for anti-competitive unlawful mergers pursuant to §7 of the Clayton Act is to be lowered from "where the effect of the acquisition may be substantially to lessen competition" to "create an appreciable risk of materially lessening competition". Further, the requirement of defining the relevant market would be dropped in many cases, enabling liability under antitrust laws even if no relevant market was defined. If the act is enforced, the Department of Justice (DOJ) and Federal Trade Commission (FTC) will be given more authority to sanction antitrust violations with higher civil monetary penalties. Penalties would encompass the greater of 15% of the entity's U.S. revenue or 30% of the entity's revenue in the line of commerce affected by the anti-competitive conduct. In addition to these penalties, treble damages would still be possible. Finally, the budget appropriations of the DOJ and FTC are to be doubled, in order for the agencies to more effectively enforce the antitrust laws. The bill would also lead to the creation of an Office of the Competition Advocate within the FTC. The Act was read twice and referred to the Committee on the Judiciary.