To implement antitrust enforcement enhancements and cooperation incentives.

October 29, 2003

Mr. DEWINE (for himself and Mr. KOHL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To implement antitrust enforcement enhancements and cooperation incentives.

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 Criminal Penalty Enhancement and Reform Act of 2003'.

TITLE I--ANTITRUST ENFORCEMENT ENHANCEMENTS AND COOPERATION INCENTIVES

SEC. 101. SUNSET.

(a) IN GENERAL- Except as provided in subsection (b), the provisions of sections 101 through 104 shall cease to have effect 5 years after the date of enactment of this Act.

(b) EXCEPTION- With respect to an applicant who has entered into an antitrust leniency agreement on or before the date on which the provisions of sections 101 through 104 of this title shall cease to have effect, the provisions of sections 101 through 104 of this title shall continue in effect.

SEC. 102. DEFINITIONS.

In this title:

(1) ANTITRUST DIVISION- The term `Antitrust Division' means the United States Department of Justice Antitrust Division.

(2) ANTITRUST LENIENCY AGREEMENT- The term `antitrust leniency agreement,' or `agreement,' means a leniency letter agreement, whether conditional or final, between a person and the Antitrust Division pursuant to the Corporate Leniency Policy of the Antitrust Division in effect on the date of execution of the agreement.

(3) ANTITRUST LENIENCY APPLICANT- The term `antitrust leniency applicant,' or `applicant,' means, with respect to an antitrust leniency agreement, the person that has entered into the agreement.

(4) CLAIMANT- The term `claimant' means a person or class, that has brought, or on whose behalf has been brought, a civil action described in section 104(1), except that the term does not include a State or a subdivision of a State with respect to a civil action brought to recover damages sustained by the State or subdivision.

(5) COOPERATING INDIVIDUAL- The term `cooperating individual' means, with respect to an antitrust leniency agreement, a current or former director, officer, or employee of the antitrust leniency applicant who is covered by the agreement.

(6) PERSON- The term `person' has the meaning given it in subsection (a) of the first section of the Clayton Act.

SEC. 103. LIMITATION ON RECOVERY.

(a) IN GENERAL- Subject to subsection (d), in any civil action alleging a violation of section 1 or 3 of the Sherman Act, or alleging a violation of any similar State law, based on conduct covered by a currently effective antitrust leniency agreement, the amount of damages recovered by or on behalf of a claimant from an antitrust leniency applicant who satisfies the requirements of subsection (b), together with the amounts so recovered from cooperating individuals who satisfy such requirements, shall not exceed that portion of the actual damages sustained by such claimant which is attributable to the commerce done by the applicant in the goods or services affected by the violation.

(b) REQUIREMENTS- Subject to subsection (c), an antitrust leniency applicant or cooperating individual satisfies the requirements of this subsection with respect to a civil action described in subsection (a) if the court in which the civil action is brought determines that the applicant or cooperating individual, as the case may be, has provided satisfactory cooperation to the claimant with respect to the civil action, which cooperation shall include--

(1) providing a full account to the claimant of all facts known to the applicant or cooperating individual, as the case may be, that are potentially relevant to the civil action;

(2) furnishing all documents or other items potentially relevant to the civil action that are in the possession, custody, or control of the applicant or cooperating individual, as the case may be, wherever they are located; and

(3)(A) in the case of a cooperating individual--

(i) making himself or herself available for such interviews, depositions, or testimony in connection with the civil action as the claimant may reasonably require; and

(ii) responding completely and truthfully, without making any attempt either falsely to protect or falsely to implicate any person or entity, and without intentionally withholding any potentially relevant information, to all questions asked by the claimant in interviews, depositions, trials, or any other court proceedings in connection with the civil action; or

(B) in the case of an antitrust leniency applicant, using its best efforts to secure and facilitate from cooperating individuals covered by the agreement the cooperation described in paragraphs (1) and (2) and subparagraph (A).

(c) TIMELINES- If the initial contact by the antitrust leniency applicant with the Antitrust Division regarding conduct covered by the antitrust leniency agreement occurs after a civil action described in subsection (a) has been filed, then the court shall consider, in making the determination concerning satisfactory cooperation described in subsection (b), the timeliness of the applicant's initial cooperation with the claimant.

(d) CONTINUATION- Nothing in this section shall be construed to modify, impair, or supersede the provisions

of sections 4, 4A, and 4C of the Clayton Act relating to the recovery of costs of suit, including a reasonable attorney's fee, and interest on damages, to the extent that such recovery is authorized by such sections.

SEC. 104. RIGHTS AND AUTHORITY OF ANTITRUST DIVISION NOT AFFECTED.

Nothing in this title shall be construed to--

(1) affect the rights of the Antitrust Division to seek a stay or protective order in a civil action based on conduct covered by an antitrust leniency agreement to prevent the cooperation described in section 103(b) from impairing or impeding the investigation or prosecution by the Antitrust Division of conduct covered by the agreement; or

(2) create any right to challenge any decision by the Antitrust Division with respect to an antitrust leniency agreement.

SEC. 105. INCREASED PENALTIES FOR ANTITRUST VIOLATIONS.

(a) RESTRAINT OF TRADE AMONG THE STATES- Section 1 of the Sherman Act (15 U.S.C. 1) is amended by--

(1) striking `$10,000,000' and inserting `$100,000,000';

(2) striking `$350,000' and inserting `$1,000,000'; and

(3) striking `three' and inserting `10'.

(b) MONOPOLIZING TRADE- Section 2 of the Sherman Act (15 U.S.C. 2) is amended by--

(1) striking `$10,000,000' and inserting `$100,000,000';

(2) striking `$350,000' and inserting `$1,000,000'; and

(3) striking `three' and inserting `10'.

(c) OTHER RESTRAINTS OF TRADE- Section 3 of the Sherman Act (15 U.S.C. 3) is amended by--

(1) striking `$10,000,000' and inserting `$100,000,000';

(2) striking `$350,000' and inserting `$1,000,000'; and

(3) striking `three' and inserting `10'.

(d) SENTENCING GUIDELINE FOR ANTITRUST OFFENSES- The Guidelines Manual promulgated by the Sentencing Commission pursuant to section 994(a) of title 28, United States Code, is amended as follows:

(1) Section 2R1.1(a) is amended by striking `10' and inserting `14'.

(2) The volume of commerce table in section 2R1.1(b)(2) is amended to read as follows:

`(2) If the volume of commerce attributable to the defendant was more than $5,000,000, adjust the offense level as follows:

add 1

add 2

add 4

add 6

add 8

add 10

add 12

add 14

add 16.'.

(3) Section 2R1.1(c)(1) is amended by striking `$20,000' and inserting `$50,000'.

TITLE II--TUNNEY ACT REFORM

SEC. 201. PUBLIC INTEREST DETERMINATION.

Section 5 of the Clayton Act (15 U.S.C. 16) is amended--

(1) in subsection (d), by inserting at the end the following: `Upon application by the United States, the district court may, for good cause (based on a finding that the expense of publication in the Federal Register exceeds the public interest benefits to be gained from such publication), authorize an alternative method of public dissemination of the public comments received and the response to those comments.'; and

(2) in subsection (e)--

(A) in the matter before paragraph (1), by--

(i) inserting `independently' after `shall';

(ii) striking `court may' and inserting `court shall'; and

(iii) inserting `(1)' before `Before'; and

(B) striking paragraphs (1) and (2) and inserting the following:

`(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous and any other competitive considerations bearing upon the adequacy of such judgment necessary to a determination of whether the consent judgment is in the public interest; and

`(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.

`(2) The Court shall not enter any consent judgment proposed by the United States under this section unless it finds that there is reasonable belief, based on substantial evidence and reasoned analysis, to support the United States' conclusion that the consent judgment is in the public interest. In making its determination as to whether entry of the consent judgment is in the public interest, the Court shall not be limited to examining only the factors set forth in this subsection, but may consider any other factor relevant to the competitive impact of the judgment.'.

END