S. 2039TEAM ACT: Tougher Enforcement Against Monopolies Act

Sen. Mike Lee (R-UT) and Sen. Chuck Grassley (R-IA)

Introduced: June 14, 2021
Status: The bill was referred to the Senate Committee on the Judiciary in June 2021.

Description

The “TEAM Act” is a comprehensive antitrust reform bill that would apply across different sectors. Among other things, the bill would:

 

  • Consolidate all antitrust enforcement authority within the Department of Justice (DOJ). The Federal Trade Commission (FTC)’s antitrust-related funding, resources, and personnel would be transferred to the DOJ, and the Federal Communications Commission would be prohibited from undertaking duplicative competition reviews

 

  • Ban all mergers that would result in a market share of 66% or higher, unless the merger is needed to prevent serious harm to the national economy.

 

  • Introduce a presumption that transactions resulting in unilateral effects or more than 33% market share (5% in the case of a state-owned entity) will substantially lessen competition. To rebut this presumption, the merging entities will have to demonstrate “by a preponderance of the evidence” the absence of an increase in market power or anticompetitive effects, or that the anticompetitive effects are clearly outweighed by procompetitive benefits.

 

  • Require premerger notification for any acquisition by a state-owned entity or a business with more than $500 billion in assets.

 

  • Specify that the Courts may only consider the effect of a challenged market conduct/transaction on consumer welfare (including price, output, quality, innovation, and consumer choice). Courts can still consider procompetitive effects as a mitigating factor, but only if the procompetitive conduct is “tied to the market in which competition or consumers are harmed.”
  • Permit the use of direct evidence that there was a clear intent to prevent competition to prove anticompetitive conduct.

 

  • Repeal Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968) and Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) to allow indirect purchasers to recover damages for antitrust violations. The bill would also allow the DOJ to recover trebled damages on behalf of consumers and impose civil fines for knowingly violating the antitrust laws.

 

  • Create a safe harbor for private entities to collaborate on data portability and interoperability.

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