CLEAN Mergers Act
- Sponsor
- Sen. Booker, Cory A. [D-NJ]
- Committees
- Judiciary Committee (primary)
- Last action
- Apr 29, 2026
Bottom line
The CLEAN Mergers Act seeks to retroactively and prospectively strengthen antitrust enforcement by mandating divestiture for large mergers and enabling review of past transactions for procedural improprieties, significantly altering the landscape for corporate acquisitions.
What it actually does
This bill, the 'Correcting Lapsed Enforcement in Antitrust Norms for Mergers Act' or 'CLEAN Mergers Act,' amends the Clayton Act to mandate divestiture for large mergers valued at $10 billion or more that were consummated during a specific 'covered period' (January 20, 2025, to January 19, 2029), unless strict competitive conditions are met. It also empowers federal antitrust agencies and state attorneys general to review any transaction during this period for procedural irregularities, misconduct, or political influence, potentially leading to forced divestiture. Furthermore, the bill extends the statute of limitations for antitrust actions from 4 to 10 years.
Proponents argue
Proponents argue that the bill is essential to correct a perceived 'lapse' in antitrust enforcement during a specific presidential term, ensuring that large, potentially anti-competitive mergers are unwound and that past transactions tainted by misconduct or insufficient review can be revisited. They contend that this measure will restore competition, protect consumers from concentrated corporate power, deter future anti-competitive behavior, and prevent undue political influence in merger reviews.
Opponents contend
Opponents would likely argue that the bill introduces significant legal uncertainty and retroactive application, which could chill legitimate merger activity, investment, and economic growth. They might contend that mandating divestiture for past transactions, even with specific carve-outs, is an overreach that undermines settled business expectations and could lead to economic instability. Concerns about the broad scope of 'enforcement-lapse transactions' and the stringent conditions for review would also be raised.
The bill is relatively short but dense with legal and technical antitrust terminology, requiring careful reading and a foundational understanding of antitrust law to fully grasp its implications.
Section 1
Short Title
This section establishes the official short title of the Act as the 'Correcting Lapsed Enforcement in Antitrust Norms for Mergers Act' or the 'CLEAN Mergers Act.' This title is used for easy reference and identification of the legislation.
Supporters argue
Supporters argue that a clear and descriptive short title helps communicate the bill's purpose and intent to the public and policymakers.
Critics contend
No specific opposition is typically raised against the short title of a bill, as it is primarily for identification.
Tradeoffs
None apparent, as this is a standard legislative practice.
Section 2, amending Section 7B(a) of the Clayton Act
Definitions and Covered Period
This section defines key terms for the new Section 7B of the Clayton Act. Crucially, it establishes a 'covered period' from January 20, 2025, to January 19, 2029. It also defines 'threshold transaction' as any transaction valued at $10 billion or more during this period, and 'enforcement-lapse transaction' as any transaction during this period that is not a threshold transaction. The definition of 'relevant market' is also simplified, deferring to plausible submarkets and indirect evidence.
Section 2, amending Section 7B(b) of the Clayton Act
Mandatory Divestiture for Threshold Transactions and Exemption Conditions
This provision mandates that parties to a 'threshold transaction' (valued at $10 billion or more during the covered period) must complete divestiture if the transaction occurred before enactment, or hold assets separate if it occurs after. However, parties can file for a declaratory judgment to exempt the transaction from divestiture if they can demonstrate several conditions, including that the merger did not significantly increase market concentration (HHI below 1800, change less than 100, market share below 30%), did not lead to inconsistent price/quality changes or output/employment reductions, fully complied with prior conditions, and was not associated with specific pro bono legal services in settlements.
Section 2, amending Section 7B(c) of the Clayton Act
Review of Enforcement-Lapse Transactions and Divestiture
This section allows federal agencies or State Attorneys General to review any 'enforcement-lapse transaction' (any merger during the covered period not meeting the $10B threshold) if certain conditions existed during its review or clearance. These conditions include violations of federal criminal law, ignored staff recommendations, incomplete investigations, improper communications by lobbyists or political appointees, material misrepresentations, political influence, conflicts of interest, foreign influence, or prior employment of political appointees by involved law/lobbying firms. If a reasonable basis for such a condition is found, divestiture of transaction assets is required, unless parties can prove the condition did not occur or was immaterial.
Section 2, amending Section 7B(e) of the Clayton Act
Mandatory Preservation of Records
This provision mandates that all parties involved in transactions during the 'covered period,' including their counsel and agents, must preserve all written and oral communications (including ephemeral messages) and electronically stored information related to the transaction. Failure to comply can result in severe penalties, including adverse inferences drawn by the court, sanctions against counsel and executives, and criminal referrals for obstruction of justice.
Section 2, amending Section 7B(f) of the Clayton Act
Enforcement Mechanisms and Penalties
This section outlines strong enforcement mechanisms for non-compliance with divestiture orders. If divestiture is not completed within 90 days of the deadline, a court-appointed trustee can be authorized to sell assets. Knowing violations can incur civil penalties up to $100,000 per day or 5% of the total transaction value, penalties for chief executive officers and board members, and damages equal to three times the commercial benefit derived from non-compliance. It also mandates the appointment of a special counsel for criminal violations related to transaction review or approval.
Section 2, amending Section 7B(g) of the Clayton Act
Presumptive Structural Relief
This provision establishes structural relief, such as divestiture, dissolution, or rescission, as the presumptive remedy for restoring competition in any relevant market in actions for declaratory judgment regarding threshold or enforcement-lapse transactions. Other remedies, like disgorgement of gains, can only be ordered if structural relief is physically or technologically impossible, or if it would not fully and effectively restore competition.
Section 3
Extension of Statute of Limitations for Antitrust Actions
This section amends Section 4B of the Clayton Act to extend the statute of limitations for antitrust actions from four years to ten years. This means that plaintiffs, including the government and private parties, would have a longer period to discover and file lawsuits for antitrust violations.
The bill defines a 'covered period' for its retroactive and prospective application as 'the period beginning on January 20, 2025, and ending on January 19, 2029.'
Section 2, amending Section 7B(a)(3) of the Clayton Act
Why it matters:While definitions are a standard place for such terms, the specificity of this four-year window is highly consequential and politically charged, suggesting a deliberate targeting of a particular presidential administration's term. Placing it in definitions might make its political implications less immediately obvious to a casual reader.
Case for: Proponents would argue that this specific period is chosen to address a perceived lapse in antitrust enforcement during a particular administration, ensuring that mergers from that time are subject to rigorous review and potential divestiture. It provides a clear, bounded scope for the bill's retroactive application.
Case against: Critics would argue that this highly specific timeframe is a politically motivated attempt to target a particular administration's policies, introducing an unprecedented level of retroactivity that undermines legal certainty and could be challenged on constitutional grounds. It creates an arbitrary distinction for mergers based on timing rather than inherent competitive effects.
Estimated impact: This timeframe will determine which thousands of mergers, potentially valued in the trillions of dollars, are subject to mandatory divestiture or review, creating immense legal and financial implications for numerous corporations.
One of the conditions for exempting a 'threshold transaction' from mandatory divestiture is that 'No lawyer or law firm involved in the transaction offered or provided pro bono legal services in connection with any settlement or agreement with any reviewing agency or executive branch official.'
Section 2, amending Section 7B(b)(2)(F) of the Clayton Act
Why it matters:This provision targets a very specific type of interaction between legal counsel and government officials. While potentially intended to prevent perceived ethical conflicts or undue influence, its specificity and placement might make it less noticeable than broader competitive criteria, potentially avoiding immediate scrutiny.
Case for: Proponents might argue that this condition is designed to prevent situations where legal professionals involved in a merger might offer pro bono services to government officials or agencies, creating an appearance of impropriety or a potential conflict of interest that could influence the outcome of a merger review or settlement.
Case against: Critics would likely argue that this is an overly broad and potentially unconstitutional restriction on legal professionals' ability to provide pro bono services, even if unrelated to the specific merger. They might contend it's an attempt to chill legitimate legal assistance or is based on an overly suspicious view of such interactions, without clear evidence of actual impropriety.
Estimated impact: This provision could significantly alter the practices of law firms involved in large mergers, potentially leading to a re-evaluation of their pro bono policies and interactions with government officials, even if those services are unrelated to the merger itself.
A condition for reviewing an 'enforcement-lapse transaction' is if 'Any political appointee, registered lobbyist, person acting at the direction or on behalf of the acquiring person... or person with a direct or indirect financial interest... communicated with any official or employee of the agencies, the Executive Office of the President, or any other Federal agency regarding the review or disposition of such transaction outside of procedures established for public comment or formal party submissions.'
Section 2, amending Section 7B(c)(1)(D) of the Clayton Act
Why it matters:The language is technically phrased, covering a wide array of individuals and communication types. While intended to prevent improper influence, its broadness could be controversial. Placing it within a list of conditions might make its full implications less immediately apparent than if it were a standalone provision.
Case for: Proponents would argue this provision is critical for ensuring the integrity of the merger review process by preventing undue influence from political appointees, lobbyists, or financially interested parties outside of transparent, formal channels. It aims to eliminate backroom deals and ensure decisions are based solely on competitive merits.
Case against: Critics would contend that this provision is excessively broad and could criminalize or penalize legitimate, routine communications between stakeholders and government officials that are not intended to be improper. They might argue it creates a chilling effect on advocacy and could be used for politically motivated challenges to past transactions, even without evidence of actual corruption.
Estimated impact: This provision could subject a vast number of past transactions to review based on a wide range of communications, potentially leading to significant litigation and a re-evaluation of how companies and their representatives interact with federal agencies on regulatory matters.