S.Amdt. 2665

SA 2665. Mr. RISCH submitted an amendment intended to be proposed by
him to the bill S. 4638, to authorize appropriations for fiscal year
2025 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:

At the end of subtitle F of title XII, add the following:

SEC. 1291. PREDATORY PRICING BY ENTITIES OWNED, CONTROLLED,
OR DIRECTED BY A FOREIGN STATE.

(a) Prohibited Acts.--
(1) In general.--Any entity owned, controlled, or directed
by a foreign state or an agent or instrumentality of a
foreign state (as defined in section 1603 of title 28, United
States Code) that participates in international commerce may
not establish or set prices below the average variable cost
in a manner that may foreseeably harm competition.
(2) Economic support.--In determining the average variable
cost under paragraph (1), the court may take into account the
effects of economic support provided by the owning or
controlling foreign state to the entity on a discriminatory
basis that may allow the entity to unfairly price at or below
marginal cost.
(3) Government subsidies.--In determining the
foreseeability of the elimination of market competitors under
paragraph (1), the court may take into account the
aggravating factor of the actions of the foreign state owning
or controlling the entity referred to in such paragraph to
use government resources to subsidize or underwrite the
losses of the entity in a manner that allows the entity to
sustain the predatory period and recoup its losses.
(4) Market power not required.--For the purpose of
establishing the elements described in paragraph (1), the
plaintiff shall not be required to demonstrate that the
defendant has monopoly or market power.
(b) Recovery of Damages.--Any person (as defined in section
1(a) of the Clayton Act (15 U.S.C. 12(a)) whose business or
property is injured as a result of the actions of an entity
described in subsection (a) shall be entitled to recovery
from the defendant for damages and other related costs under
section 4 of such Act (15 U.S.C. 15).
(c) Elements of Prima Facie Case.--A plaintiff may initiate
a claim against a defendant in an appropriate Federal court
for a violation of subsection (a) in order to recover damages
under subsection (b) by--
(1) establishing, by a preponderance of the evidence, that
the defendant--
(A) is a foreign state or an agency or instrumentality of a
foreign state (as defined in section 1603 of title 28, United
States Code); and
(B) is not immune from the jurisdiction of the Federal
court pursuant to section 1605(a)(2) of title 28, United
States Code; and
(2) setting forth sufficient evidence to establish a
reasonable inference that the defendant has violated
subsection (a).
(d) Court Determination Leading to Evidentiary Burden
Shifting to Defendant.--If a Federal court finds that a
plaintiff has met its burden of proof under subsection (c),
the court may determine that--
(1) the plaintiff has established a prima facie case that
the conduct of the defendant is in violation of subsection
(a); and
(2) the defendant has the burden of rebutting such case by
establishing that the defendant is not in violation of
subsection (a).
(e) Filing of Amicus Briefs by the Department of State and
Department of Justice Regarding International Comity and Harm
to Competition.--
(1) In general.--For the purposes of considering questions
of international comity with respect to making decisions
regarding commercial activity and the scope of applicable
sovereign immunity, the Federal court may receive and
consider relevant amicus briefs filed by the Secretary of
State.
(2) Attorney general.--For the purposes of considering
questions regarding assessing potential harm to competition,
the Federal court may receive and consider relevant amicus
briefs filed by the Attorney General.
(3) Savings provision.--Nothing in paragraph (1) may be
construed to limit the ability of the Federal court to
receive and consider any other amicus briefs.
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