Antitrust Law Daily Senator Klobuchar introduces bill to deter anticompetitive abuses
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Wednesday, March 11, 2020

Senator Klobuchar introduces bill to deter anticompetitive abuses

By Thomas K. Lauletta, J.D.

The legislation is aimed at what Klobuchar terms the country’s "major monopoly problem."

U.S. Senator Amy Klobuchar (D-MN), Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, has introduced new legislation intended to deter anticompetitive abuses seen as distorting the competitive process and harm consumers, innovation, and new business formation. The Anticompetitive Exclusionary Conduct Prevention Act would prohibit anticompetitive exclusionary conduct that risks harm to the competitive process and makes reforms to improve antitrust enforcement. The bill was cosponsored by Senators Richard Blumenthal (D-CT) and Cory Booker (D-NJ).

In a press release Klobuchar stated that "We have a major monopoly problem in this country, which harms consumers and threatens free and fair competition across our economy. . . . 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."

As Klobuchar sees it, powerful companies, particularly in key sectors like online commerce, pharmaceuticals and agriculture, have used harmful exclusionary practices to foster growing their market concentration and market power. Such exclusionary practices have been aided by decades of federal court decisions that chilled enforcement under existing laws, when compared to efforts of other countries. This creates an increased danger our U.S. markets becoming less competitive and our economy becoming less prosperous.

Key provisions of Klobuchar's legislation would:

  1. Amend the Clayton Act to prohibit "exclusionary conduct" that presents an "appreciable risk of harming competition." The amendment would shift the burden of proof so that companies that have a market share exceeding 50% or that otherwise have substantial market power would have to prove that their exclusionary conduct in the markets that they dominate does not present an "appreciable risk of harming competition." In addition to the other remedies available under the Clayton Act, the bill would allow the DOJ and FTC to seek civil penalties of up to 15% of their total U.S. revenues, or 30% of their U.S. revenues in any line of commerce affected or targeted by the unlawful conduct.
  2. Eliminate the unnecessary "Market Definition" requirements. The bill clarifies that the antitrust laws to not require the definition of a relevant market, unless the statutory language explicitly requires it to resolve a case. Under current antitrust law, courts have often required claimants to prove a relevant market to establish liability, even in when clear evidence of competitive harm is present
  3. Prevent courts from improperly implying antitrust immunities. Klobuchar's press release takes the position that courts have implied immunity from the antitrust laws for certain conduct based on the existence of federal regulations, thereby ignoring statutory savings clauses passed by Congress. The bill would limit the ability of courts to imply antitrust immunity for regulated conduct.

The bill has the support of the American Antitrust Institute (AAI), Consumer Reports, and Public Knowledge. Diana L. Moss, President of the AAI, praised the bill as strengthening "U.S. law to limit harmful conduct by dominate firms--an area of antitrust law that has been largely unenforced for decades." George Slover, Senior Policy Counsel, Consumer Reports, stated that Klobuchar's bill addresses and works to remedy a key shortcoming of the current law: "Current law doesn't apply to a company until it already has a monopoly, or is on the verge of one--even when it has enough market power to sabotage the competitive process." Charlotte Slaiman, Competitive Policy Director at Public Knowledge, stated: "For far too long, antitrust enforcers have been fighting with one hand tied behind their backs. This legislation will revitalize antitrust enforcement in exclusionary conduct cases by sharpening the tools of our antitrust agencies."

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