Democrats Introduce Bills for Stronger Merger Enforcement

On September 14, 2017, Senator Amy Klobuchar (D-MN) introduced two pieces of legislation intended to reform antitrust scrutiny of mergers and acquisitions under the Clayton Act:  the Consolidation Prevention and Competition Promotion Act (CPCPA) and the Merger Enforcement Improvement Act (MEIA).  Both were part of the Democrats’ “A Better Deal” antitrust agenda announced earlier this year.

The CPCPA, among other things, aims to reduce – significantly – the burden of proof required by the Department of Justice and Federal Trade Commission to challenge mergers and acquisitions as anticompetitive.  Currently, the agencies must show that a proposed transaction “significantly” lessens competition; the CPCPA would amend that standard to whether the transaction “materially” lessons competition more than a “de minimus” amount.  The CPCPA also shifts the burden to the merging companies in “mega mergers” to demonstrate that the transaction does not harm competition, adds monopsonies to the list of illegal conduct prohibited by the Clayton Act, and creates an Office of the Competition Advocate charged with encouraging antitrust investigations from both agencies and soliciting reports concerning anticompetitive behaviors in the marketplace.

The MEIA would also increase merger enforcement through measures such as imposing reporting requirements on companies that settled with the antitrust agencies prior to closing, increasing funding to the agencies, and altering the pre-merger notification filing fees under the Hart-Scott-Rodino Antitrust Improvements Act (including adding a new category for deals exceeding $1 billion).

Bloomberg’s coverage of the legislation can be found here:

Senator Klobuchar’s press release concerning the new legislation can be found here:

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