The Sherman Act was passed in 1890. The Clayton Act in 1914. And
they have hardly changed since. Last month, Senator Amy Klobuchar,
the new chair of the Senate Judiciary Committee's Subcommittee
on Antitrust, Competition Policy and Consumer Rights, proposed an
overhaul of the antitrust laws: CLERA, the Competition and
Antitrust Law Enforcement Reform Act. If passed, CLERA would
constitute the most significant change to antitrust law in a least
a generation. In particular, it would also pose substantial new
antitrust concerns for technology companies seeking to engage in
what have been standard mergers and acquisitions.
Mergers and Acquisitions
First, CLERA aims to lower the threshold for determining whether
a merger or acquisition is prohibited under Section 7 of the
Clayton Act. Mergers that "create an appreciable risk of
materially lessening competition," would be prohibited. Under
current law, the "substantially lessen," standard
requires the government to
