Trust-Busting for the Twenty-First Century Act

Trust-Busting for the Twenty-First Century Act

This bill makes various changes to the federal antitrust statutes and places restrictions on acquisitions involving certain dominant digital firms.

First, the bill revises the evidentiary standards for establishing an illegal monopoly. Under the bill, if a plaintiff establishes the existence of substantial market power or the detrimental effects of particular practices, then the plaintiff need not further establish the scope of the relevant market or the share of the market controlled by the defendant. Further, to prove that the procompetitive effects justify a defendant's conduct the defendant must show by clear and convincing evidence that (1) the procompetitive effects of the conduct outweigh the anticompetitive effects, and (2) the defendant could not obtain substantially similar procompetitive effects through commercially reasonable alternatives. In the case of a violation, courts must order the disgorgement of all profits earned as a result of the conduct.

Next, the bill generally prohibits acquisitions by companies with a market capitalization exceeding $100 billion where the effect of the acquisition may be to lessen competition.

Finally, the Federal Trade Commission may designate as a dominant digital firm a website or online service that the commission determines possesses dominant market power based on specified factors. Acquisitions by such firms in excess of $1 million are presumed unfair trade practices under the bill. Further, a dominant digital firm that provides search functionality must disclose to users any search results are that are promoted or demoted based on whether the search result is affiliated or not affiliated with the firm.