Legislation is supported by antitrust enforcers from both sides of the aisle  

WASHINGTON, D.C. — U.S. Senator Peter Welch (D-Vt.), a member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, today joined U.S. Senator Amy Klobuchar (D-Minn.), Ranking Member of the Senate Judiciary Subcommittee on Privacy, Technology, and the Law, and U.S. Representative Jamie Raskin (D-MD-08), Ranking Member of the House Judiciary Committee, in introducing the Antitrust Accountability and Transparency Act, bicameral legislation to strengthen review of antitrust settlements to ensure they protect consumers, workers, and small businesses. 

“When there’s a bad merger deal, it’s consumers and small businesses who foot the bill—facing higher prices and fewer choices as a result,” said Senator Welch. “Any backdoor corporate settlement needs to face real scrutiny before it’s allowed to move forward. We need stronger antitrust laws that protect hardworking families.”  

“When the government prosecutes antitrust violations, the goal should be to uphold the law, lower prices, and protect consumers and small businesses. 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,” said Senator Klobuchar. 

“The Antitrust Accountability and Transparency Act restores the idea that antitrust enforcement must serve the people—not conglomerates and special interests with Beltway lobbyists. When evaluating mergers and settlements, the Trump Administration has sidelined independent expertise and cut backroom deals that will hurt consumers, workers, and small businesses. This bill helps guarantee that antitrust settlements will advance the core mission of our laws: to promote healthy competition, lower prices, foster innovation and support American workers and our democracy. I’m proud to lead this legislation with Senator Klobuchar to renew integrity, transparency, and public trust and purpose in the enforcement of our antitrust laws,” said Rep. Raskin. 

Recently, the Justice Department, over the objection of its own Antitrust Division, settled a merger in enterprise networking markets only a few days before trial. The settlement led to the firing of two antitrust officials. One of those officials, Roger Alford, warned that the Administration is engaged in a “pay-to-play approach to antitrust enforcement” and that “the Department of Justice is now overwhelmed with lobbyists with little antitrust expertise going above the Antitrust Division leadership seeking special favors.” 

Notably, even President Trump’s own Assistant Attorney General for Antitrust Gail Slater was ousted, reportedly in part, because of her resistance to inappropriate pressure by Justice Department leadership over antitrust matters, including the case against Live Nation-Ticketmaster, which was recently settled mid-trial without the knowledge of the lawyers trying the case in court. These controversies highlight the need to empower courts to ensure settlements are consistent with the antitrust laws’ purpose of lowering prices, increasing choice, and protecting workers. 

The Antitrust Accountability and Transparency Act would protect consumers, workers, and the integrity of antitrust enforcement by making the following reforms to the Tunney Act: 

• Apply Review to the Federal Trade Commission. Currently, the Tunney Act applies only to the Justice Department. This made sense when the Federal Trade Commission (FTC) was led by a truly bipartisan, independent Commission with removal protections. But with the firing of FTC commissioners, the time is ripe to extend Tunney Act review to the FTC; 

• Bolster disclosure requirements. The Act requires (1) the government to explain how the proposed settlement remedies antitrust issues; (2) the government to disclose previous settlement offers and the process for reviewing those offers; (3) the disclosure of side-deals not included in the four corners of a consent decree; and (4) the parties to disclose all communications related to the settlement.  

• Impose Hold-Separate Provisions. Currently, after a settlement courts may move forward with a merger by combining assets before courts finish reviewing a settlement. Once this occurs, courts are frequently reluctant to order parties to “unscramble an egg” even if a settlement is problematic because doing so is costly and disruptive. To remedy this without creating undue delays for businesses, the Act creates a hold-separate requirement for up to 90 days to allow the court to review public comments and government responses. A court may allow the hold-separate period to lapse or, upon showing the settlement may pose problems, extend the hold-separate order as necessary. 

• Strengthen Court Review. In addition to the public interest standard, the Act also requires courts to ensure the settlement terms (1) do not pose a material risk of allowing a merger or other business conduct to continue that threatens to violate the antitrust laws; and (2) are reasonably related to the antitrust concerns, preventing the government from using antitrust as leverage in others, unrelated matters. Courts are also required to base their decisions on reasoned analysis and evidence and need not defer to the government. 

• Empower State Attorneys General. The bill empowers state attorneys general by allowing them to intervene in Tunney Act hearings as a matter of right rather than spending their limited resources fighting to have a court even consider their perspective. 

• Voluntary Dismissals. Currently, there is no review process for voluntary dismissals. Where the federal government chooses to voluntarily dismiss a case (rather than settling), the Act creates a process by which state attorneys general can step into the shoes of the federal government and continue the case. 

In addition to Senators Welch and Klobuchar, this legislation is cosponsored in the Senate by Judiciary Committee Ranking Member Dick Durbin and Sens. Cory Booker (D-N.J.), Mazie Hirono (D-Hawaii), Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.), Elizabeth Warren (D-Mass.), and Chris Murphy (D-Conn.). 

The bill is endorsed by Jonathan Kanter (former Assistant Attorney General for Antitrust); Bill Baer (former Assistant Attorney General for Antitrust); Roger Alford (Former Deputy Assistant Attorney General for Antitrust under President Trump); Tim Wu (Former White House as special assistant to the president for technology and competition policy); Randy Stutz (President of the American Antitrust Institute); Bill Kovacic (former Republican Chair of the FTC); Gene Kimmelman (former Deputy Assistant Attorney General for Antitrust); John Newman (Former Deputy Director, Federal Trade Commission); Professor Darren Bush; Public Knowledge; Open Markets Institute; and the American Economic Liberties Project.  

“These amendments make clear that courts have both the authority and the obligation to do more than rubber-stamp government settlements. Antitrust violations should not end in weak settlements that leave the public holding the bag,” said Jonathan Kanter, former Assistant Attorney General for Antitrust. 

“These proposals are welcome additions to strengthen judicial review of merger settlements and ensure voluntary dismissals are not used to circumvent review,” said Roger Alford, former Deputy Assistant Attorney General for Antitrust.  

“The Tunney Act intended to ensure that antitrust enforcement was merits-based. Recent developments suggest that the sunlight it demanded could be easily evaded.  It’s time for an update to protect the rule of law. This bill does just that,” said Bill Baer, former Assistant Attorney General for Antitrust. 

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