On September 29, 2022, the U.S. House of Representatives passed a package of three antitrust bills (H.R. 3843) by a vote of 242-184. The package includes: (1) the Merger Filing Fee Modernization Act; (2) the Foreign Merger Subsidy Disclosure Act; and (3) the State Antitrust Enforcement Venue Act.
The Merger Filing Fee Modernization Act updates the structure and amounts of premerger filing fees that the Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) collect pursuant to the Hart-Scott Rodino Antitrust Improvement Act of 1976. The Merger Filing Fee Modernization Act reduces fees for smaller transactions, increases fees for mergers valued at $1 billion or greater, and adjusts the filing fee amounts for each future year based on changes in the Consumer Price Index. Finally, the bill requires the FTC and DOJ to report each year on the total revenue generated from premerger notification filing fees, broken out by tier, and the FTC must also include in the report a list of all actions the agency took or declined to take based on a 3-to-2 vote.
The Foreign Merger Subsidy Disclosure Act requires parties submitting premerger notifications to disclose detailed information on subsidies from a “foreign entity of concern.” A foreign entity of concern is defined under 42 U.S.C. § 18741(a) and includes those designated foreign terrorist organizations, on the Specially Designated and Blocked Persons List, and alleged to be involved in espionage or unauthorized conduct detrimental to the national security or foreign policy of the United States. The definition further covers entities owned by, controlled by, or subject to the direction of the governments of the Democratic People’s Republic of North Korea, the People’s Republic of China, the Russian Federation, or the Islamic Republic of Iran.
The State Antitrust Enforcement Venue Act allows State Attorneys General to bring antitrust actions in their own jurisdictions, exempting them from multidistrict litigation processes provided under 28 U.S.C. § 1407. Currently, civil actions with common questions of fact that are pending in different jurisdictions may be transferred to a single jurisdiction “for coordinated or consolidated” proceedings. The statute contains an exemption for cases brought by the United States arising under antitrust laws, and the legislation expands that exemption to individual states.
This legislative package now moves to the Senate, where it is unclear when and how that chamber will act on the bill. The Senate is currently in recess so that members can campaign for November’s midterm elections. This leaves a small, but sufficient, window for the Senate to take action on the legislation once it returns.
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