S. 4434

[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 4434 Introduced in Senate (IS)]

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119th CONGRESS
2d Session
S. 4434

To amend the Clayton Act to provide for the divestiture of certain 
transactions, and for other purposes.

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

April 29, 2026

Mr. Booker (for himself, Ms. Warren, Mr. Heinrich, Mr. Murphy, and Ms. 
Hirono) introduced the following bill; which was read twice and 
referred to the Committee on the Judiciary

_______________________________________________________________________

A BILL

To amend the Clayton Act to provide for the divestiture of certain 
transactions, 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 ``Correcting Lapsed Enforcement in 
Antitrust Norms for Mergers Act'' or the ``CLEAN Mergers Act''.

SEC. 2. DIVESTITURE OF THRESHOLD TRANSACTIONS; REVIEW OF ENFORCEMENT-
LAPSE TRANSACTIONS.

The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting 
after section 7A (15 U.S.C. 18a) the following:

``SEC. 7B.(A) IN THIS SECTION--

``(1) the term `agencies' means the Department of Justice, 
the Federal Trade Commission, the Federal Communications 
Commission, the Department of Transportation, and the Surface 
Transportation Board;
``(2) the term `court' means any district court of the 
United States having jurisdiction over parties seeking a 
declaratory judgment or other relief pursuant to this Act;
``(3) the term `covered period' means the period beginning 
on January 20, 2025, and ending on January 19, 2029;
``(4) the term `enforcement-lapse transaction' means any 
transaction consummated during the covered period that is not a 
threshold transaction;
``(5) the term `HHI' means the Herfindahl-Hirschman Index;
``(6) the term `relevant market' has the meaning given the 
term in the `Merger Guidelines U.S. Department of Justice and 
the Federal Trade Commission' issued on December 18, 2023;
``(7) the term `transaction' means an acquisition subject 
to section 7A, including any transaction exempt from the 
requirements of subsection (c) of that section, during the 
covered period; and
``(8) the term `threshold transaction' means a transaction 
consummated during the covered period with a value of not less 
than $10,000,000,000.
``(b)(1) Beginning on the date that is 180 days after the date of 
enactment of this section, the parties to a threshold transaction 
shall--
``(A) if the transaction was consummated before the date of 
enactment of this section, complete divestiture of such 
transaction; and
``(B) if the transaction is consummated after the date of 
enactment of this section, hold separate the assets of the 
merging entities to ensure such assets remain independent, 
economically viable, and that competition is maintained during 
the pendency of agency review under subsection (c)(1).
``(2) The acquiring person and person whose voting securities or 
assets were acquired may file an action for a declaratory judgment 
seeking to exempt the threshold transaction from the divestiture 
requirements under paragraph (1) by demonstrating that all of the 
following conditions exist:
``(A) The threshold transaction did not result in--
``(i) a post-acquisition HHI in excess of 1,800; or
``(ii) a change in the HHI of greater than 100 in 
any relevant market;
``(iii) a market share greater than 30 percent of 
any relevant market; or
``(iv) an increase in HHI of more than 100.
``(B) With respect to any line of business, price increases 
or quality adjustments were materially consistent with 
representations made during agency review of the transaction.
``(C) The threshold transaction was not followed by any 
significant reduction in output by the post-acquisition entity, 
as compared to the highest level of combined output by the 
acquiring person and person whose voting securities or assets 
were acquired during the 2-year period ending on the date on 
which the agency began review of the transaction.
``(D) The threshold transaction was not followed by any 
significant reduction in employment inconsistent with 
representations made or omitted during agency review of the 
transaction.
``(E) Any divestiture or other condition imposed in 
connection with the approval of the transaction achieved full 
and timely compliance without any accusation of circumvention, 
malicious compliance, or failure of any assets subject to 
divestiture.
``(F) No lawyer or law firm involved in the transaction 
offered or provided pro bono legal services in connection with 
any settlement or agreement with any reviewing agency or 
executive branch official.
``(3) In any proceeding initiated pursuant to subsection (b)(2), 
the Attorney General of any State shall have an unconditional right of 
intervention.
``(c)(1) Not later than 2 years after the date of enactment of this 
section, the agencies or the Attorney General of any State may conduct 
a review of any enforcement-lapsed transaction consummated prior to or 
after the date of enactment of this section to determine whether any of 
the following conditions existed with respect to the review or 
clearance of such transaction:
``(A) Conduct constituting a violation of section 201, 208, 
or 1001 of title 18, United States Code, or section 7A of this 
Act.
``(B) The transaction was cleared, approved, or subject to 
dismissal, entry of a consent decree, or other final 
disposition notwithstanding a written recommendation to the 
contrary by any civil servant in the agency conducting the 
review, including--
``(i) to open an investigation into a transaction;
``(ii) to request additional information and 
documentary materials;
``(iii) that a party withdraw a premerger 
notification and submit a new filing for a transaction;
``(iv) to challenge a transaction; or
``(v) to further modify or condition the 
transaction.
``(C) The transaction was approved, cleared, or otherwise 
disposed of without the completion of an investigation 
following a request for additional information or documentary 
material under section 7A(e).
``(D) Any political appointee, registered lobbyist, person 
acting at the direction or on behalf of the acquiring person 
and person whose voting securities or assets were acquired, or 
person with a direct or indirect financial interest in the 
outcome of such transaction, communicated with any official or 
employee of the agencies, the Executive Office of the 
President, or any other Federal agency regarding the review or 
disposition of such transaction outside of procedures 
established for public comment or formal party submissions.
``(E) A material misrepresentation or omission related to 
the transaction was made to the agency at any point prior to or 
during the completion of any review of a transaction.
``(F) The President, or any member of the Cabinet, or head 
of a Federal agency, made statements--
``(i) indicating a preference for a particular 
acquiring person and person whose voting securities or 
assets were acquired, or outcome in such transaction;
``(ii) suggesting that commitments, concessions, or 
promises were sought or obtained from any acquiring 
person and person whose voting securities or assets 
were acquired in connection with the review or 
clearance thereof; or
``(iii) suggesting that the disposition of such 
transaction was influenced by considerations unrelated 
to the competitive effects of such transaction under 
the antitrust laws.
``(G) The approval of the transaction was materially 
influenced by a conflict of interest, improper ex parte 
communication, or other ethical violation or professional 
misconduct by any official involved in the review.
``(H) The acquiring person and person whose voting 
securities or assets were acquired were represented by any law 
firm, lobbying firm, or other person that had previously 
employed a political appointee at a reviewing agency during the 
1-year period ending on the date of the appointment.
``(I) Any foreign government, foreign state-owned 
enterprise, sovereign wealth fund, or agent of a foreign 
principal, as defined in section 1(b) of the Foreign Agents 
Registration Act of 1938, as amended (22 U.S.C. 611(b)), 
directly or indirectly sought to influence the review, 
clearance, or disposition of the transaction through any 
communication with any official or employee of the agencies, 
the Executive Office of the President, or any other Federal 
agency.
``(2)(A) If the reviewing agency determines that there is a 
reasonable basis to conclude that 1 or more of the conditions described 
in subparagraphs (A) through (I) of paragraph (1) are met, the agency 
shall provide written notice to the acquiring person and person whose 
voting securities or assets were acquired requiring divestiture of any 
and all transaction assets, including the dissolution of any agreement 
or venture incidental to the transaction, not later than 30 days after 
such determination.
``(B) The divestiture required under subparagraph (A) shall be 
completed not later than 180 days after the date on which the acquiring 
person and person whose voting securities or assets were acquired 
receive the notice under that subparagraph, unless the acquiring person 
and person whose voting securities or assets were acquired file an 
action for a declaratory judgment under paragraph (3).
``(3) The acquiring person and person whose voting securities or 
assets were acquired may file for an action for a declaratory judgment 
seeking to exempt the enforcement-lapsed transaction from the 
divestiture requirements under paragraph (2) by demonstrating to the 
court by clear and convincing evidence that, as to any condition 
forming the basis of a notice to divest under paragraph (2), such 
condition--
``(A) did not occur; or
``(B) was so immaterial to any agency action related to the 
transaction that no reasonable person might consider the 
condition and agency action related in any way.
``(4) In any proceeding initiated pursuant to paragraph (3), the 
Attorney General of any State shall have an unconditional right of 
intervention.
``(d) In any action under this section, the identification of the 
relevant market--
``(1) shall not require direct evidence or expert witness 
testimony regarding prices, output, or substitutability; and
``(2) shall defer to any plausible submarket, which may be 
adequately defined based on indirect evidence of the boundaries 
of the relevant market, including practical indicia of market 
boundaries recognized by the industry, customers or the public, 
or any potential submarket considered by any agency at the time 
the transaction was reviewed.
``(e)(1) All acquiring persons and persons whose voting securities 
or assets were acquired during the covered period and any counsel, 
lobbyist, or other agent of the acquiring person and person whose 
voting securities or assets were acquired shall--
``(A) preserve any written or oral communication by or on 
behalf of such acquiring person and person whose voting 
securities or assets were acquired, including any ephemeral 
message, by any officer, director, employee, or agent of such 
acquiring person and person whose voting securities or assets 
were acquired, or other person, with any officer or employee of 
the United States related to the transaction;
``(B) preserve any document and electronically stored 
information described in rule 34(a)(1)(A) of the Federal Rules 
of Civil Procedure related to the transaction; and
``(C) take all steps necessary to prevent the destruction, 
loss, or alteration of any such document, electronically stored 
information, communication, and other data or information 
generated by or stored on the a computer, mobile device, or 
storage media of an acquiring person and person whose voting 
securities or assets were acquired.
``(2) If a party fails to comply with paragraph (1), in any 
proceeding before a court relating to the transaction, the court 
shall--
``(A) instruct the factfinder to draw an adverse inference 
that the evidence that was not preserved would have been 
unfavorable to the party that failed to preserve such evidence;
``(B) sanction counsel and executives to the extent they 
knew or should have known their actions or inactions would 
cause such failure; and
``(C) make criminal referrals to the extent such failure is 
a violation of section 1512(c) of title 18, United States Code.
``(3) Any records preserved pursuant to this subsection shall be 
made available to the attorney general of any State upon request.
``(f)(1) If the acquiring person and person whose voting securities 
or assets were acquired fail to complete divestiture pursuant to 
subsection (b)(1) or (c)(2) before the date that is 90 days after the 
date on which the divestiture is required to be completed, the court 
shall appoint, or a reviewing agency shall move a court to appoint, an 
independent divestiture trustee with the authority to effect the sale 
of assets on such terms as the trustee determines are reasonable, 
subject to court approval.
``(2) If a court finds that any person knowingly violated the 
requirements of subsection (b)(1) or (c)(2), the court may--
``(A) impose a civil penalty not to exceed the greater of--
``(i) $100,000 each day during which such violation 
persists; or
``(ii) 5 percent of the total value of the 
transaction;
``(B) impose against the chief executive officer and board 
members of any entity resulting from the transaction, a civil 
penalty not more than $100,000 each day during which such 
violation persists; and
``(C) impose any other monetary or equitable relief, or 
initiate a contempt proceeding or criminal referral that the 
court, in its discretion, determines is necessary to effectuate 
compliance with the requirements of this Act.
``(3) If the court finds that the failure to divest pursuant to 
subsection (b)(1) or (c)(2) was knowing, the court may award damages in 
an amount equal to 3 times the value of the commercial benefit derived 
by the parties from the continued operation of the assets subject to 
divestiture during the period of noncompliance.
``(4) If the agencies have probable cause to believe that any 
person has violated section 201, section 208, or section 1001 of title 
18, United States Code, in connection with the review or approval of a 
transaction, the Attorney General shall appoint a special counsel to 
investigate and, if warranted, prosecute such violations.
``(g)(1) Except as provided in paragraph (2), in any action by an 
acquiring person and person whose voting securities or assets were 
acquired for declaratory judgment, as to any threshold or enforcement-
lapse transaction, structural relief, including divestiture, 
dissolution, or rescission, shall be the presumptive remedy for 
restoring competition in any relevant market.
``(2) The court may order additional remedies, including the 
disgorgement of any gain attributable to the transaction, only upon a 
finding supported by clear evidence that--
``(A) a divestiture is physically or technologically 
impossible; or
``(B) any other remedy would not fully and effectively 
restore competition.''.

SEC. 3. LIMITATIONS FOR ANTITRUST ACTIONS.

Section 4B of the Clayton Act (15 U.S.C. 15b) is amended, in the 
first sentence, by striking ``four years'' and inserting ``10 years''.

SEC. 4. SEVERABILITY.

If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of the provisions 
of such to any person or circumstance shall not be affected thereby.
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