Sen. Amy Klobuchar has introduced the Antitrust Accountability and Transparency Act in an effort to strengthen reviews of antitrust settlements to ensure they protect consumers, workers and small businesses.
The AATA would extend reviews under the Tunney Act to the Federal Trade Commission, which currently only apply to the Justice Department. It would also require the government to explain how a proposed settlement remedies antitrust issues and to disclose previous settlement offers, the process for reviewing those offers and side-deals not included in the four concerns of a consent decree. The parties involved in the settlement would also be required to disclose all communications related to the settlement.
The legislation would also create a “hold-separate” requirement for up to 90 days to allow a court to review public comments and government responses to a settlement before a merger can move forward. Courts may allow the hold-separate period to lapse or, upon showing the settlement may pose problems, extend the hold-separate order as necessary.
The act would further require that courts ensure the settlement terms “do not pose a material risk of allowing a merger or other business conduct to continue that threatens to violate the antitrust laws” and are reasonably related to the antitrust concerns to prevent the government from using it as leverage in other unrelated matters. Courts would also be required to base their decisions on “reasoned analysis and evidence, not merely deference to the government.”
Additionally, the bill would empower state attorneys general by allowing them to intervene in Tunney Act hearings and creates a process by which they can step in to fight and continue a case where the federal government chooses to voluntarily dismiss it.
Klobuchar’s move comes after Live Nation and Ticketmaster reached a settlement with the Department of Justice that ranged between $200-$280 million in civil penalties across the 40 states that sued the event company for creating a ticket sales monopoly.
The case could have forced the breakup of Live Nation and its Ticketmaster unit, as federal prosecutors argued that the combined entertainment giant leverages its dominance to stifle competition and inflate costs. However, Ticketmaster will now have to open up its technology to other third-party ticket sellers instead.
“When the government prosecutes antitrust violations, the goal should be to uphold the law, lower prices, and protect consumers and small businesses,” Klobuchar said in a Tuesday statement. “In the recent settlement between the Department of Justice and Live Nation, it is clear the American people got the raw end of the deal. This bill — which has support from antitrust enforcers from both sides of the aisle — ensures that courts have the tools to independently review settlements and approve only those that benefit the American people.”
Despite the federal settlement, certain states are keeping up the fight with a trial that resumed on Monday.
In addition to Klobuchar, the legislation is co-sponsored by Sens. Dick Durbin, Cory Booker, Maise Hirono, Richard Blumenthal, Peter Welch, Sheldon Whitehouse, Elizabeth Warren and Chris Murphy. Rep. Jamie Raskin also is leading efforts for companion legislation in the House.
It is also endorsed by former Assistant Attorneys General for Antitrust Jonathan Kantar and Bill Baer, former Deputy Assistant Attorneys General for Antitrust Roger Alford and Gene Kimmelman, former White House special assistant to the president for technology and competition policy Tim Wu, American Antitrust Institute president Randy Stutz, former FTC chair Bill Kovacic, former FTC deputy director John Newman, professor Darren Bush, Public Knowledge, the Open Markets Institute and the American Economic Liberties Project.
The introduction of the legislation follows the ousting of antitrust chief Gail Slater. It also comes amid the DOJ’s review of Paramount and Warner Bros. Discovery’s $110 billion merger deal, which is expected to close by Sept. 30.
