[108th Congress Public Law 237]
[From the U.S. Government Printing Office]
[DOCID: f:publ237.108]
[[Page 118 STAT. 661]]
Public Law 108-237
108th Congress
An Act
To encourage the development and promulgation of voluntary consensus
standards by providing relief under the antitrust laws to standards
development organizations with respect to conduct engaged in for the
purpose of developing voluntary consensus standards, and for other
purposes. <<NOTE: June 22, 2004 - [H.R. 1086]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I--STANDARDS <<NOTE: Standards Development Organization
Advancement Act of 2004.>> DEVELOPMENT ORGANIZATION ADVANCEMENT ACT OF
2004
SEC. 101. <<NOTE: 15 USC 4301 note.>> SHORT TITLE.
This title may be cited as the ``Standards Development Organization
Advancement Act of 2004''.
SEC. 102. <<NOTE: 15 USC 4301 note.>> FINDINGS.
The Congress finds the following:
(1) In 1993, the Congress amended and renamed the National
Cooperative Research Act of 1984 (now known as the National
Cooperative Research and Production Act of 1993 (15 U.S.C. 4301
et seq.)) by enacting the National Cooperative Production
Amendments of 1993 (Public Law 103-42) to encourage the use of
collaborative, procompetitive activity in the form of research
and production joint ventures that provide adequate disclosure
to the antitrust enforcement agencies about the nature and scope
of the activity involved.
(2) Subsequently, in 1995, the Congress in enacting the
National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) recognized the importance of technical
standards developed by voluntary consensus standards bodies to
our national economy by requiring the use of such standards to
the extent practicable by Federal agencies and by encouraging
Federal agency representatives to participate in ongoing
standards development activities. The Office of Management and
Budget on February 18, 1998, revised Circular A-119 to reflect
these changes made in law.
(3) Following enactment of the National Technology Transfer
and Advancement Act of 1995, technical standards developed or
adopted by voluntary consensus standards bodies have replaced
thousands of unique Government standards and specifications
allowing the national economy to operate in a more unified
fashion.
[[Page 118 STAT. 662]]
(4) Having the same technical standards used by Federal
agencies and by the private sector permits the Government to
avoid the cost of developing duplicative Government standards
and to more readily use products and components designed for the
commercial marketplace, thereby enhancing quality and safety and
reducing costs.
(5) Technical standards are written by hundreds of nonprofit
voluntary consensus standards bodies in a nonexclusionary
fashion, using thousands of volunteers from the private and
public sectors, and are developed under the standards
development principles set out in Circular Number A-119, as
revised February 18, 1998, of the Office of Management and
Budget, including principles that require openness, balance,
transparency, consensus, and due process. Such principles
provide for--
(A) notice to all parties known to be affected by
the particular standards development activity,
(B) the opportunity to participate in standards
development or modification,
(C) balancing interests so that standards
development activities are not dominated by any single
group of interested persons,
(D) readily available access to essential
information regarding proposed and final standards,
(E) the requirement that substantial agreement be
reached on all material points after the consideration
of all views and objections, and
(F) the right to express a position, to have it
considered, and to appeal an adverse decision.
(6) There are tens of thousands of voluntary consensus
standards available for government use. Most of these standards
are kept current through interim amendments and interpretations,
issuance of addenda, and periodic reaffirmation, revision, or
reissuance every 3 to 5 years.
(7) Standards developed by government entities generally are
not subject to challenge under the antitrust laws.
(8) Private developers of the technical standards that are
used as Government standards are often not similarly protected,
leaving such developers vulnerable to being named as
codefendants in lawsuits even though the likelihood of their
being held liable is remote in most cases, and they generally
have limited resources to defend themselves in such lawsuits.
(9) Standards development organizations do not stand to
benefit from any antitrust violations that might occur in the
voluntary consensus standards development process.
(10) As was the case with respect to research and production
joint ventures before the passage of the National Cooperative
Research and Production Act of 1993, if relief from the threat
of liability under the antitrust laws is not granted to
voluntary consensus standards bodies, both regarding the
development of new standards and efforts to keep existing
standards current, such bodies could be forced to cut back on
standards development activities at great financial cost both to
the Government and to the national economy.
[[Page 118 STAT. 663]]
SEC. 103. DEFINITIONS.
Section 2 of the National Cooperative Research and Production Act of
1993 (15 U.S.C. 4301) is amended--
(1) in subsection (a) by adding at the end the following:
``(7) The term `standards development activity' means any
action taken by a standards development organization for the
purpose of developing, promulgating, revising, amending,
reissuing, interpreting, or otherwise maintaining a voluntary
consensus standard, or using such standard in conformity
assessment activities, including actions relating to the
intellectual property policies of the standards development
organization.
``(8) The term `standards development organization' means a
domestic or international organization that plans, develops,
establishes, or coordinates voluntary consensus standards using
procedures that incorporate the attributes of openness, balance
of interests, due process, an appeals process, and consensus in
a manner consistent with the Office of Management and Budget
Circular Number A-119, as revised February 10, 1998. The term
`standards development organization' shall not, for purposes of
this Act, include the parties participating in the standards
development organization.
``(9) The term `technical standard' has the meaning given
such term in section 12(d)(4) of the National Technology
Transfer and Advancement Act of 1995.
``(10) The term `voluntary consensus standard' has the
meaning given such term in Office of Management and Budget
Circular Number A-119, as revised February 10, 1998.''; and
(2) by adding at the end the following:
``(c) The term `standards development activity' excludes the
following activities:
``(1) Exchanging information among competitors relating to
cost, sales, profitability, prices, marketing, or distribution
of any product, process, or service that is not reasonably
required for the purpose of developing or promulgating a
voluntary consensus standard, or using such standard in
conformity assessment activities.
``(2) Entering into any agreement or engaging in any other
conduct that would allocate a market with a competitor.
``(3) Entering into any agreement or conspiracy that would
set or restrain prices of any good or service.''.
SEC. 104. RULE OF REASON STANDARD.
Section 3 of the National Cooperative Research and Production Act of
1993 (15 U.S.C. 4302) is amended by striking ``of any person in making
or performing a contract to carry out a joint venture shall'' and
inserting the following: ``of--
``(1) any person in making or performing a contract to carry
out a joint venture, or
``(2) a standards development organization while engaged in
a standards development activity,
shall''.
SEC. 105. LIMITATION ON RECOVERY.
Section 4 of the National Cooperative Research and Production Act of
1993 (15 U.S.C. 4303) is amended--
[[Page 118 STAT. 664]]
(1) in subsections (a)(1), (b)(1), and (c)(1) by inserting
``, or for a standards development activity engaged in by a
standards development organization against which such claim is
made'' after ``joint venture'',
(2) in subsection (e)--
(A) by inserting ``, or of a standards development
activity engaged in by a standards development
organization'' before the period at the end, and
(B) by redesignating such subsection as subsection
(f), and
(3) by inserting after subsection (d) the following:
``(e) Subsections (a), (b), and (c) shall not be construed to modify
the liability under the antitrust laws of any person (other than a
standards development organization) who--
``(1) directly (or through an employee or agent)
participates in a standards development activity with respect to
which a violation of any of the antitrust laws is found,
``(2) is not a fulltime employee of the standards
development organization that engaged in such activity, and
``(3) is, or is an employee or agent of a person who is,
engaged in a line of commerce that is likely to benefit directly
from the operation of the standards development activity with
respect to which such violation is found.''.
SEC. 106. ATTORNEY FEES.
Section 5 of the National Cooperative Research and Production Act of
1993 (15 U.S.C. 4304) is amended--
(1) in subsection (a) by inserting ``, or of a standards
development activity engaged in by a standards development
organization'' after ``joint venture'', and
(2) by adding at the end the following:
``(c) Subsections (a) and (b) shall not apply with respect to any
person who--
``(1) directly participates in a standards development
activity with respect to which a violation of any of the
antitrust laws is found,
``(2) is not a fulltime employee of a standards development
organization that engaged in such activity, and
``(3) is, or is an employee or agent of a person who is,
engaged in a line of commerce that is likely to benefit directly
from the operation of the standards development activity with
respect to which such violation is found.''.
SEC. 107. DISCLOSURE OF STANDARDS DEVELOPMENT ACTIVITY.
Section 6 of the National Cooperative Research and Production Act of
1993 (15 U.S.C. 4305) is amended--
(1) in subsection (a)--
(A) by redesignating paragraphs (1), (2), and (3) as
subparagraphs (A), (B), and (C), respectively,
(B) by inserting ``(1)'' after ``(a)'', and
(C) by adding at the end the following:
``(2) A <<NOTE: Deadline.>> standards development organization may,
not later than 90 days after commencing a standards development activity
engaged in for the purpose of developing or promulgating a voluntary
consensus standards or not later than 90 days after the date of the
enactment of the Standards Development Organization Advancement Act of
2004, whichever is later, file simultaneously with
[[Page 118 STAT. 665]]
the Attorney General and the Commission, a written notification
disclosing--
``(A) the name and principal place of business of the
standards development organization, and
``(B) documents showing the nature and scope of such
activity.
Any standards development organization may file additional disclosure
notifications pursuant to this section as are appropriate to extend the
protections of section 4 to standards development activities that are
not covered by the initial filing or that have changed significantly
since the initial filing.'',
(2) in subsection (b)--
(A) in the 1st sentence by inserting ``, or a notice
with respect to such standards development activity that
identifies the standards development organization
engaged in such activity and that describes such
activity in general terms'' before the period at the
end, and
(B) in the last sentence by inserting ``or available
to such organization, as the case may be'' before the
period,
(3) in subsection (d)(2) by inserting ``, or the standards
development activity,'' after ``venture'',
(4) in subsection (e)--
(A) by striking ``person who'' and inserting
``person or standards development organization that'',
and
(B) by inserting ``or any standards development
organization'' after ``person'' the last place it
appears, and
(5) in subsection (g)(1) by inserting ``or standards
development organization'' after ``person''.
SEC. 108. <<NOTE: 15 USC 4301 note.>> RULE OF CONSTRUCTION.
Nothing in this title shall be construed to alter or modify the
antitrust treatment under existing law of--
(1) parties participating in standards development activity
of standards development organizations within the scope of this
title, including the existing standard under which the conduct
of the parties is reviewed, regardless of the standard under
which the conduct of the standards development organizations in
which they participate are reviewed, or
(2) other organizations and parties engaged in standard-
setting processes not within the scope of this amendment to the
title.
TITLE II--ANTITRUST <<NOTE: Antitrust Criminal Penalty Enhancement and
Reform Act of 2004>> CRIMINAL PENALTY ENHANCEMENT AND REFORM ACT OF 2004
SEC. 201. <<NOTE: 15 USC 1 note.>> SHORT TITLE.
This title may be cited as the ``Antitrust Criminal Penalty
Enhancement and Reform Act of 2004''.
[[Page 118 STAT. 666]]
Subtitle A--Antitrust Enforcement Enhancements and Cooperation
Incentives
SEC. 211. <<NOTE: 15 USC 1 note.>> SUNSET.
(a) In General.--Except as provided in subsection (b), the
provisions of sections 211 through 214 shall cease to have effect 5
years after the date of enactment of this Act.
(b) Exception.--With respect to an applicant who has entered into an
antitrust leniency agreement on or before the date on which the
provisions of sections 211 through 214 of this subtitle shall cease to
have effect, the provisions of sections 211 through 214 of this subtitle
shall continue in effect.
SEC. 212. <<NOTE: 15 USC 1 note.>> DEFINITIONS.
In this subtitle:
(1) Antitrust division.--The term ``Antitrust Division''
means the United States Department of Justice Antitrust
Division.
(2) Antitrust leniency agreement.--The term ``antitrust
leniency agreement,'' or ``agreement,'' means a leniency letter
agreement, whether conditional or final, between a person and
the Antitrust Division pursuant to the Corporate Leniency Policy
of the Antitrust Division in effect on the date of execution of
the agreement.
(3) Antitrust leniency applicant.--The term ``antitrust
leniency applicant,'' or ``applicant,'' means, with respect to
an antitrust leniency agreement, the person that has entered
into the agreement.
(4) Claimant.--The term ``claimant'' means a person or
class, that has brought, or on whose behalf has been brought, a
civil action alleging a violation of section 1 or 3 of the
Sherman Act or any similar State law, except that the term does
not include a State or a subdivision of a State with respect to
a civil action brought to recover damages sustained by the State
or subdivision.
(5) Cooperating individual.--The term ``cooperating
individual'' means, with respect to an antitrust leniency
agreement, a current or former director, officer, or employee of
the antitrust leniency applicant who is covered by the
agreement.
(6) Person.--The term ``person'' has the meaning given it in
subsection (a) of the first section of the Clayton Act.
SEC. 213. <<NOTE: 15 USC 1 note.>> LIMITATION ON RECOVERY.
(a) In General.--Subject to subsection (d), in any civil action
alleging a violation of section 1 or 3 of the Sherman Act, or alleging a
violation of any similar State law, based on conduct covered by a
currently effective antitrust leniency agreement, the amount of damages
recovered by or on behalf of a claimant from an antitrust leniency
applicant who satisfies the requirements of subsection (b), together
with the amounts so recovered from cooperating individuals who satisfy
such requirements, shall not exceed that portion of the actual damages
sustained by such claimant which is attributable to the commerce done by
the applicant in the goods or services affected by the violation.
(b) Requirements.--Subject to subsection (c), an antitrust leniency
applicant or cooperating individual satisfies the requirements
[[Page 118 STAT. 667]]
of this subsection with respect to a civil action described in
subsection (a) if the court in which the civil action is brought
determines, after considering any appropriate pleadings from the
claimant, that the applicant or cooperating individual, as the case may
be, has provided satisfactory cooperation to the claimant with respect
to the civil action, which cooperation shall include--
(1) providing a full account to the claimant of all facts
known to the applicant or cooperating individual, as the case
may be, that are potentially relevant to the civil action;
(2) furnishing all documents or other items potentially
relevant to the civil action that are in the possession,
custody, or control of the applicant or cooperating individual,
as the case may be, wherever they are located; and
(3)(A) in the case of a cooperating individual--
(i) making himself or herself available for such
interviews, depositions, or testimony in connection with
the civil action as the claimant may reasonably require;
and
(ii) responding completely and truthfully, without
making any attempt either falsely to protect or falsely
to implicate any person or entity, and without
intentionally withholding any potentially relevant
information, to all questions asked by the claimant in
interviews, depositions, trials, or any other court
proceedings in connection with the civil action; or
(B) in the case of an antitrust leniency applicant, using
its best efforts to secure and facilitate from cooperating
individuals covered by the agreement the cooperation described
in clauses (i) and (ii) and subparagraph (A).
(c) Timeliness.--If the initial contact by the antitrust leniency
applicant with the Antitrust Division regarding conduct covered by the
antitrust leniency agreement occurs after a State, or subdivision of a
State, has issued compulsory process in connection with an investigation
of allegations of a violation of section 1 or 3 of the Sherman Act or
any similar State law based on conduct covered by the antitrust leniency
agreement or after a civil action described in subsection (a) has been
filed, then the court shall consider, in making the determination
concerning satisfactory cooperation described in subsection (b), the
timeliness of the applicant's initial cooperation with the claimant.
(d) Continuation.--Nothing in this section shall be construed to
modify, impair, or supersede the provisions of sections 4, 4A, and 4C of
the Clayton Act relating to the recovery of costs of suit, including a
reasonable attorney's fee, and interest on damages, to the extent that
such recovery is authorized by such sections.
SEC. 214. <<NOTE: 15 USC 1 note.>> RIGHTS, AUTHORITIES, AND LIABILITIES
NOT AFFECTED.
Nothing in this subtitle shall be construed to--
(1) affect the rights of the Antitrust Division to seek a
stay or protective order in a civil action based on conduct
covered by an antitrust leniency agreement to prevent the
cooperation described in section 213(b) from impairing or
impeding the investigation or prosecution by the Antitrust
Division of conduct covered by the agreement;
(2) create any right to challenge any decision by the
Antitrust Division with respect to an antitrust leniency
agreement; or
[[Page 118 STAT. 668]]
(3) affect, in any way, the joint and several liability of
any party to a civil action described in section 213(a), other
than that of the antitrust leniency applicant and cooperating
individuals as provided in section 213(a) of this title.
SEC. 215. INCREASED PENALTIES FOR ANTITRUST VIOLATIONS.
(a) Restraint of Trade Among the States.--Section 1 of the Sherman
Act (15 U.S.C. 1) is amended by--
(1) striking ``$10,000,000'' and inserting ``$100,000,000'';
(2) striking ``$350,000'' and inserting ``$1,000,000''; and
(3) striking ``three'' and inserting ``10''.
(b) Monopolizing Trade.--Section 2 of the Sherman Act (15 U.S.C. 2)
is amended by--
(1) striking ``$10,000,000'' and inserting ``$100,000,000'';
(2) striking ``$350,000'' and inserting ``$1,000,000''; and
(3) striking ``three'' and inserting ``10''.
(c) Other Restraints of Trade.--Section 3 of the Sherman Act (15
U.S.C. 3) is amended by--
(1) striking ``$10,000,000'' and inserting ``$100,000,000'';
(2) striking ``$350,000'' and inserting ``$1,000,000''; and
(3) striking ``three'' and inserting ``10''.
Subtitle B--Tunney Act Reform
SEC. 221. PUBLIC <<NOTE: 15 USC 16 note.>> INTEREST DETERMINATION.
(a) Congressional Findings and Declaration of Purposes.--
(1) Findings.--Congress finds that--
(A) the purpose of the Tunney Act was to ensure that
the entry of antitrust consent judgments is in the
public interest; and
(B) it would misconstrue the meaning and
Congressional intent in enacting the Tunney Act to limit
the discretion of district courts to review antitrust
consent judgments solely to determining whether entry of
those consent judgments would make a ``mockery of the
judicial function''.
(2) Purposes.--The purpose of this section is to effectuate
the original Congressional intent in enacting the Tunney Act and
to ensure that United States settlements of civil antitrust
suits are in the public interest.
(b) Public Interest Determination.--Section 5 of the Clayton Act (15
U.S.C. 16) is amended--
(1) in subsection (d), by inserting at the end the
following: ``Upon application by the United States, the district
court may, for good cause (based on a finding that the expense
of publication in the Federal Register exceeds the public
interest benefits to be gained from such publication), authorize
an alternative method of public dissemination of the public
comments received and the response to those comments.'';
(2) in subsection (e)--
(A) in the matter before paragraph (1), by--
(i) striking ``court may'' and inserting
``court shall''; and
(ii) inserting ``(1)'' before ``Before''; and
(B) striking paragraphs (1) and (2) and inserting
the following:
[[Page 118 STAT. 669]]
``(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement
and modification, duration of relief sought, anticipated effects
of alternative remedies actually considered, whether its terms
are ambiguous, and any other competitive considerations bearing
upon the adequacy of such judgment that the court deems
necessary to a determination of whether the consent judgment is
in the public interest; and
``(B) the impact of entry of such judgment upon competition
in the relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set
forth in the complaint including consideration of the public
benefit, if any, to be derived from a determination of the
issues at trial.
``(2) Nothing in this section shall be construed to require the
court to conduct an evidentiary hearing or to require the court to
permit anyone to intervene.''; and
(3) in subsection (g), by inserting ``by any officer,
director, employee, or agent of such defendant'' before ``, or
other person''.
Approved June 22, 2004.
LEGISLATIVE HISTORY--H.R. 1086:
---------------------------------------------------------------------------
HOUSE REPORTS: No. 108-125 and Pt. 2 (Comm. on the Judiciary).
CONGRESSIONAL RECORD:
Vol. 149 (2003):
June 10, considered and passed
House.
Vol. 150 (2004):
Apr. 2, considered and passed
Senate, amended.
June 2, House concurred in Senate
amendment.
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