William C. Lavery is a partner in the Washington, DC office of Baker Botts L.L.P.
With Congress back in session, antitrust reform is a political hot topic again. “Anti-monopoly” sentiment and related legislative proposals have been on the rise. Lawmakers on both sides of the aisle appear on board with the idea that they want to do something to change the status quo, but don’t necessarily agree what that is. And with widely differing motives, it’s far from clear what the end result might be, and whether the potential legislative changes would achieve any worthy policy goals.
Nonetheless, perhaps surprisingly given the polarized political environment, we might be nearing a critical turning point where Congress may come to an agreement and enact significant reform. Indeed, the proposed bills currently on the table would amount to the biggest policy shift in antitrust law that we have seen in fifty years. Even if Congress takes a more middle-of-the-road approach, the substantive changes could be drastic. This post addresses one of the somewhat less controversial proposals being considered—the State Antitrust Enforcement Venue Act—that deserves a bit more attention.
Taking a step back—many of the antitrust proposals on the table are (at least superficially) aimed at regulating large technology companies and other big businesses. And they are gaining traction. Statements by both federal and state antitrust regulators, and even a White House executive order, have made it clear that antitrust reform is one area that enjoys at least some bipartisan support. This is not unheard of—but in recent times it’s certainly rare; it’s been decades since we have had any meaningful changes in antitrust jurisprudence. While there have been plenty of merger challenges by DOJ and FTC in recent years, the last major breakup of any purported monopolist in the U.S. was nearly 40 years ago, and the last case even seeking dissolution of a major firm was over 20 years ago.
The proposals have seemingly gained some public support as well—particularly with advocates of progressive antitrust reform. Indeed, on September 2 nearly 60 public interest groups sent a letter to House Speaker Nancy Pelosi and Republican Leader Kevin McCarthy supporting the passage of, and urging a vote on, a package of six antitrust bills that cleared the House Judiciary Committee in late June. State lawmakers and attorneys general have likewise lobbied for the passage of the proposed bills.
The six bills in the package that cleared the House Judiciary Committee1—which, according to some, are aimed at “reining in” “Big Tech” and solving America’s purported “monopoly problem”—are expansive. They include proposals regarding merger filing fees for big platforms, shifts in the burden of proof, a presumption that certain mergers are anticompetitive (regardless of industry), limits to so-called “self-preferencing” on digital platforms, and avenues to make it easier for state AGs to bring cases. But make no mistake—the proposed bills are not limited to Big Tech. If passed in their current forms (or anything close), they will have significant effects on all companies across the economy, large and small. The impacts could be particularly significant for companies and even entire industries that have not typically worried about antitrust enforcement.
Among the proposals is the State Antitrust Enforcement Venue Act of 2021 (H.R. 3460), which as of September 23 advanced out of the Senate Judiciary Committee.2 Some have described this bill as an “easy” and “limited” technical change to the Judicial Panel on Multidistrict Litigation (“JPML”) process. Although at first blush it may seem to be an “easy” bill for politicians on both sides of the aisle to agree on, it is in reality not at all “limited” in its potential effects.
At a high level, the State Antitrust Enforcement Venue Act would give state attorneys general more control over where federal antitrust cases they file are litigated by allowing them to stay in the court of their choosing. Section 1407 of Title 28 of the U.S. Code (passed in 1976) created and authorized a panel of seven circuit and district judges to transfer civil actions involving one or more common questions of fact that were pending in different districts to a single district for pretrial proceedings, if it determines that transfer will be convenient for the parties and witnesses and will promote efficiency. See 28 U.S.C. § 1407(a). This is referred to as “centralization.” The actions are then remanded at the conclusion of pretrial proceedings to their original districts for trial. The proposed bill would change Section 1407 and remove the JPML’s authority to transfer “to any district” civil actions from different jurisdictions when states AGs are involved. Subsection (g) of the law already exempts the federal government (FTC and DOJ) from such transfers, and the proposal would effectively include states as well. In other words, the bill proposes a carve-out in the law that empowers the JPML to consolidate litigation and would shield antitrust enforcement actions by state attorneys general from the JPML’s authority. The bill does not limit the exception to criminal actions and actions seeking injunctive relief, unlike the existing exception for federal enforcers. Moreover, significantly, the venue bills are retroactive to June 1, 2021.
State AGs have been lobbying for this change for some time. Indeed, just last week a bipartisan group of 30 state attorneys general sent a letter to both chambers of Congress advocating for the State Antitrust Enforcement Venue Act (among others), emphasizing that they “urge Congress to include in the legislation a provision confirming that the states are sovereigns that stand on equal footing with federal enforcers under federal antitrust law, including with regard to the timing of challenging anticompetitive mergers and other practices.” The states’ concerns with being part of large MDLs are basically two-fold: (1) they don’t want to be forced to litigate outside of their home states, and (2) they are concerned that having their cases transferred as part of a large MDL will cause delay in their litigation. And they have considerable support in Congress. The bill’s bipartisan sponsors—including Ken Buck (R-CO), David Cicilline (D-RI), Dan Bishop (R-NC), Burgess Owens (R-UT), and Joseph Neguse (D-CO) in the House, and Amy Klobuchar (D-MN) and Mike Lee (R-UT) in the Senate—have all said that they agree that state AGs should be on the same footing as federal regulators when it comes to enforcing the antitrust laws.
No one disputes that the MDL process was instituted for a legitimate reason and serves legitimate goals (for all parties involved, including the courts). It has for decades. It allows the parties and the court to conserve resources, eliminates the need for the parties to retain different counsel in different jurisdictions (to a certain extent), and minimizes the risk of inconsistent outcomes regarding the same questions. And it is widely accepted that large antitrust class actions—which are common—are generally most efficient when all related actions are centralized in the same court as part of the same pretrial proceeding.
Restricting the JPML’s ability to centralize actions will have significant consequences. If enacted, the proposed bill will undoubtedly drive up the cost and duration of many class actions. We will still have MDLs (the proposed legislation does nothing to get rid of them), but we will also have proceedings pending outside of the MDLs that will create headaches for everyone involved. Discovery will no longer be streamlined. Parties will be answering discovery requests from the state(s) in one proceeding (or more), private parties in another, and maybe the federal government in another. With different schedules, different pretrial rulings and different discovery requests, coordination between the actions will be difficult if not impossible. Witnesses—plaintiffs, defendants, and third parties—will be subjected to duplicative depositions in multiple jurisdictions. The Federal Rules of Civil Procedure allow for broad discovery. It will not be easy for even non-parties to get out of their discovery obligations simply based on an argument of burden or duplication. Inconsistent rulings on dispositive motions will also result in different substantive outcomes in different jurisdictions—even though the exact same conduct is at issue. This will result in inconsistent precedent and create uncertainty for all stakeholders. Simply put, taking state AGs out of the “centralization” equation will create management issues, decrease efficiency, decrease predictability, and in all likelihood, result in even more delays.
Notably, the judiciary itself has concerns with the proposed bill. Indeed, the Director of the Administrative Office of US Courts (“AO”), US District Judge Roslynn R. Mauskopf, recently wrote House Minority Leader Kevin McCarthy to note the AO’s concern with the proposed bill. While the letter notes that its “comments are neither expressions of support for, nor opposition to the bill,” it strongly condemns the proposal. Among other things, it notes that the bill could reduce efficiencies in antitrust litigation, particularly because state AGs’ claims are typically similar to those by purchasers alleging antitrust injuries, thereby taxing the judiciary’s limited resources with duplicative claims for the same conduct. It even notes that states might end up worse off by losing their ability to influence antitrust MDLs.
It is somewhat rare for the AO to comment on proposed legislation, particularly in situations where it is not asked for an opinion, which as far as we are aware, is the case here. The AO is a US administrative agency, generally responsible for supporting the federal judicial branch on a wide range of issues. It also facilitates communications within the judiciary and with Congress and the executive branch, and at times will analyze proposed legislation from Congress that will affect the courts’ operations or personnel (but usually not without being requested to do so).
The AO’s letter drew a fairly quick and somewhat fiery response from Amy Klobuchar, Mike Lee, Ken Buck and David Cicilline. The lawmakers sent a letter to Judge Mauskopf on July 28 not only detailing their disagreement with Judge Mauskopf’s view of the proposed bill, but also stressing that it was “unusual, if not inappropriate, for the Administrative Office of the United States Courts” to send the letter in the first place. The letter effectively stressed the same arguments for the proposed bill that we note above—states have a legitimate interest in representing their citizens and centralization can at times cause delay. Both are fair points, but may not outweigh the costs.
In sum, while the State Antitrust Venue Enforcement Act States may be less extreme than some of the more neo-Brandeisian reform ideas out there (that essentially advocate for a return to structuralism and an all-out rejection of economic analysis), it will still have significant and far-reaching consequences. No doubt, states have sovereign rights and their enforcement actions serve interests beyond those served by private actions. And their concern that centralization may at times result in “substantial delay” is a legitimate one. But the State Antitrust Venue Enforcement Act proposes serious changes to a system that has worked for many years. So we should ask ourselves—is it worth it? States’ rights should be carefully balanced against concerns of judicial efficiency and logistical realties of litigation. The proposed bill risks upsetting that balance.
- The American Innovation and Choice Online Act (H.R. 3816), the Ending Platform Monopolies Act (H.R. 3825), the Platform Competition and Opportunity Act (H.R. 3826), the Merger Filing Fee Modernization Act (H.R. 3843), the Augmenting Compatibility and Competition by Enabling Service Switching ACCESS) Act (H.R. 3849), and the State Antitrust Enforcement Venue Act (H.R. 3460).
- There is a parallel bill in the Senate.