Antitrust Accountability and Transparency Act

The bill amends section 5 of the Clayton Act, which governs how courts review settlements in federal antitrust cases. It updates the language so that rules apply to both civil court cases and certain administrative cases involving the Federal Trade Commission (FTC), and it removes a reference that limited some coverage of FTC actions. It shortens the standard public comment period for proposed antitrust consent judgments from 60 days to 45 days. It clarifies that when the FTC submits a consent judgment to a district court and follows these procedures, the court has authority over the case. It also tells the United States or the FTC to explain, in more detail, how a proposed settlement fixes material risks of antitrust law violations and to describe any commitments made to the government that are not written into the settlement itself. The bill lets people who submit public comments also file replies to the government’s responses, and requires the government to file its responses within 30 days after the comment period closes. It states that if the FTC follows these steps, that satisfies other notice-and-comment requirements related to consent judgments. In merger cases under section 7 of the Clayton Act, the bill requires the parties to keep all assets related to the transaction separate, as if under a waiting period, until 15 days after the government files and publishes its responses to public comments. A court may extend this “hold separate” period if it finds there is a reasonable likelihood that the consent judgment does not meet the legal public-interest standard and that the balance of equities supports an extension. Violating this hold-separate order is treated like a violation of the Hart-Scott-Rodino waiting-period rules and can lead to civil penalties. The bill changes the standard for court approval of consent judgments. It directs courts to find, based on evidence and reasoned analysis, that the settlement is in the public interest, does not permit conduct that creates a material risk of violating antitrust laws, and is reasonably tailored to the violations alleged. It requires courts to consider written hearing requests from federal or state agencies, including state attorneys general, when deciding whether to hold an evidentiary hearing. If the court decides to hold such a hearing, any federal or state agency that requested it must be allowed to intervene, though courts are not required to allow other parties to intervene. The bill states that a consent judgment becomes effective only when the court enters it, and that the decision is within the court’s discretion; courts are not required to defer to the federal government’s predictions about how well the remedies will work. It strengthens court powers to order production of certain communications with current or former government officials and information about benefits or concessions offered to the government or its employees that may relate to the proceeding or decision to enter the judgment. The bill expands disclosure rules to include communications with the Executive Office of the President and requires that disclosures list the date and participants in each written or oral communication. It also clarifies that certain provisions apply when the United States sues under section 4A of the Clayton Act or when the FTC acts under section 5 of the FTC Act. Finally, the bill creates a new framework for proposed voluntary dismissals of federal antitrust cases. Before the Department of Justice or FTC can move to voluntarily dismiss a civil antitrust case, it must file and publish the proposal at least 45 days before it would take effect, and the case is stayed during that period. During those 45 days, any state attorney general may move to substitute into the case. The court must grant substitution unless there is clear and convincing evidence that no genuine factual issues could support any claim or that the defendant is entitled to judgment as a matter of law. If substitution is granted, the action continues between the remaining parties, and the federal government or FTC must transfer all non-deliberative materials relevant to the case to the state attorneys general. The bill also clarifies that references to the United States or Attorney General in this section include the FTC, and that “antitrust laws” include unfair methods of competition under section 5 of the FTC Act.