S. 4107

[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 4107 Introduced in Senate (IS)]

<DOC>

119th CONGRESS
2d Session
S. 4107

To amend section 5 of the Clayton Act to include proposed voluntary 
dismissals in the court's consideration of proposed consent judgments 
and clarify the public interest, and for other purposes.

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

March 17, 2026

Ms. Klobuchar (for herself, Mr. Durbin, Mr. Booker, Ms. Hirono, Mr. 
Blumenthal, Mr. Welch, Ms. Warren, Mr. Murphy, and Mr. Whitehouse) 
introduced the following bill; which was read twice and referred to the 
Committee on the Judiciary

_______________________________________________________________________

A BILL

To amend section 5 of the Clayton Act to include proposed voluntary 
dismissals in the court's consideration of proposed consent judgments 
and clarify the public interest, and for other purposes.

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Antitrust Accountability and 
Transparency Act''.

SEC. 2. AMENDMENTS.

Section 5 of the Clayton Act (15 U.S.C. 16) is amended--
(1) in subsection (a), by striking ``or under section 5 of 
the Federal Trade Commission Act which could give rise to a 
claim for relief under the antitrust laws'';
(2) in subsection (b)--
(A) in the matter preceding paragraph (1)--
(i) by inserting ``or administrative'' 
after ``any civil'';
(ii) by inserting ``, or in the case of an 
administrative proceeding, a district court in 
which 1 or more defendants is incorporated or 
headquartered,'' after ``the district court 
before which such proceeding is pending'';
(iii) by striking ``published by the United 
States'' and inserting ``published'' each place 
it appears;
(iv) by striking ``60 days'' and inserting 
``45 days'';
(v) by inserting ``A district court to 
which a consent judgment is submitted by the 
Federal Trade Commission in compliance with 
this subsection is invested with jurisdiction 
under this section.'' after ``prior to the 
effective date of such judgment.''; and
(vi) by striking ``sixty-day period'' and 
inserting ``45-day period'';
(B) in paragraph (3), by inserting ``any 
commitments made by the parties to the United States or 
Federal Trade Commission not memorialized in the 
proposal related to the proceeding, how the proposal 
remedies any material risk that the antitrust laws may 
be violated,'' after ``thereby,''; and
(C) in paragraph (6), by inserting ``or Federal 
Trade Commission, including any settlement offers, 
divestitures, or other remedies, including the process 
through which these proposals were considered'' before 
the period;
(3) in subsection (c) by striking ``60 days'' and inserting 
``45 days'';
(4) in subsection (d)--
(A) by striking ``during the 60-day period'' and 
inserting the following: ``(1) during the 45-day 
period'';
(B) in paragraph (1), as so designated--
(i) by striking ``his designee'' and 
inserting ``a designee thereof'';
(ii) by striking ``such 60-day time 
period'' and inserting ``such 45-day time 
period'';
(iii) by striking ``At the close of'' and 
inserting ``Not later than 30 days after the 
close of'';
(iv) by inserting ``Parties that submitted 
comments shall be allowed to submit a reply to 
the responses published by the United States or 
Federal Trade Commission.'' before the last 
sentence; and
(v) by adding at the end ``Compliance with 
this section by the Federal Trade Commission 
shall satisfy any other notice-and-comment 
requirements relating to consent judgments.''; 
and
(C) by adding at the end the following:
``(2)(A) In a proceeding brought under section 7, the parties shall 
continue to hold all assets related to the transaction separate as if 
they are subject to a waiting period under section 7A until the date 
that is 15 days after the United States or Federal Trade Commission 
files with the district court and causes to be published in the Federal 
Register a response to comments under this subsection. The court may 
extend the period during which the parties are required to hold all 
assets related to the transaction separate upon a finding that--
``(i) there is a reasonable likelihood that the court will 
determine that the consent judgment does not meet the 
requirements in subsection (e)(1); and
``(ii) the balance of the equities favors extending the 
order.
``(B) In the event that the court extends the period during which 
the parties are required to hold all assets separate, the court shall 
make all reasonable efforts to expedite its determination under 
subsection (e)(1).
``(3) A violation of paragraph (2) shall be treated as a violation 
of section 7A and parties may be liable for civil penalties pursuant to 
subsection (g) of that section.
``(4) Any order to hold assets separate shall expire upon a finding 
by the court that the consent judgment satisfies the requirements under 
subsection (e)(1).''.
(5) in subsection (e)--
(A) in paragraph (1)--
(i) in the matter preceding subparagraph 
(A), by inserting ``there is a reasonable 
belief, based on evidence and reasoned 
analysis, that'' after ``the court shall 
determine that''; and
(ii) in subparagraph (A), by inserting ``, 
does not permit any transaction, merger, 
agreement, business practice, or other course 
of conduct that creates a material risk of 
violating the antitrust laws, and that the 
provisions of the consent judgment are 
reasonably tailored to the violations of the 
antitrust laws alleged in the complaint'' after 
``whether the consent judgment is in the public 
interest'';
(B) in paragraph (2), by striking ``or to require 
the court to permit anyone to intervene'' and inserting 
``, but the court shall take into account any written 
request for a hearing by any Federal or State agency, 
including any State attorney general, when determining 
whether to conduct an evidentiary hearing''; and
(C) by adding at the end the following:
``(3) If the court determines that an evidentiary hearing 
is appropriate, any Federal or State agency, including any 
State attorney general that made a written request under 
paragraph (2), shall be allowed to intervene. Nothing shall 
require the court to permit any other party to intervene.
``(4) A consent judgment filed under this section shall 
take effect only upon entry by the court. The decision to enter 
a consent judgment under this section is within the discretion 
of the court, which need not defer to the United States's 
predictions about the efficacy of its remedies.'';
(6) in subsection (f)--
(A) by inserting ``current or former'' before 
``Government officials'';
(B) in paragraph (4), by striking ``and'' at the 
end;
(C) by redesignating paragraph (5) as paragraph 
(7); and
(D) by inserting after paragraph (4) the following:
``(5) order the production of the communications that were 
disclosed or should have been disclosed pursuant to subsection 
(g), including all related documents and testimony relating to 
the communications;
``(6) order the production of information or testimony 
regarding the provision of, or offer to provide, a benefit or 
concession by any party in the proceeding to the Government or 
an employee or officer thereof, including payments, donations, 
or alterations in policy or business practices that the court 
finds may have a reasonable connection to the proceeding or 
decision to enter the proposed judgment; and'';
(7) in subsection (g)--
(A) by inserting ``, including the Executive Office 
of the President,'' after ``any officer or employee of 
the United States''; and
(B) by striking ``except that any'' and inserting 
``, and shall include the date of each written or oral 
communication and each author of, recipient of, and 
participant to each written or oral communication. 
Any'';
(8) in subsection (h), by inserting ``, or by the Federal 
Trade Commission under section 5 of the Federal Trade 
Commission Act (15 U.S.C. 45),'' after ``under section 4A of 
this Act''; and
(9) by adding at the end the following:
``(j) Voluntary Dismissals.--
``(1) In general.--Any proposal to file a motion to 
voluntarily dismiss any civil proceeding brought by the United 
States or Federal Trade Commission under the antitrust laws 
shall be filed with the district court before which such 
proceeding is pending, and published in the Federal Register 
not less than 45 days prior to the effective date of such 
voluntary dismissal. The case shall be stayed during this 45-
day period.
``(2) Substitution.--During the 45-day period under 
paragraph (1), any State attorney general may file a motion for 
substitution in the proceeding. A court shall grant the motion 
for substitution unless presented with clear and convincing 
evidence by the parties that there are no genuine issues of 
material fact that could support any claim in the proceeding or 
that the defendant would be entitled to judgment as a matter of 
law. If the motion for substitution is granted, the action does 
not abate, but proceeds in favor of or against the remaining 
parties.
``(3) Transfer.--Upon a grant of a motion for substitution 
under paragraph (2), the United States or the Federal Trade 
Commission shall promptly transfer all materials relevant to 
the litigation that are not subject to the deliberative process 
privilege to the applicable State attorneys general and the 
case shall continue on a schedule that will not cause undue 
delay, as determined appropriate by the court.
``(k) References.--In this section, all references to--
``(1) the United States or the Attorney General shall be 
deemed to include the Federal Trade Commission, as applicable; 
and
``(2) the antitrust laws shall be deemed to include an 
unfair method of competition under section 5 of the Federal 
Trade Commission Act (15 U.S.C. 45).''.
<all>