Momentum continues to build for stronger antitrust laws and enforcement. Would this help?

A two-page bipartisan bill introduced in the House of Representatives on May 21, 2021, would give state attorneys general more control over where their antitrust cases are litigated, ending the ability of defendants to move certain types of cases to jurisdictions they prefer. 

Rep. Ken Buck (R-Colo.) introduced H.R. 3460, the State Antitrust Enforcement Venue Act of 2021, with Representatives David Cicilline (D-R.I.), Dan Bishop (R-N.C.), Burgess Owens (R-Utah), and Joseph D. Neguse (D-Colo.) co-sponsoring. 

Antitrust enforcement actions filed by the federal government cannot be transferred by the Judicial Panel on Multidistrict Litigation (JPML). This allows the U.S. Department of Justice to remain in the court it selects, guaranteeing it the home-field advantage. 

According to a statement from Rep. Buck’s office, this exemption “also ensures the United States’ litigation moves quickly because it is not able to be combined with any similar case brought by private plaintiffs, which traditionally runs much more slowly because of the various competing interests in the litigation."

States suing under federal antitrust laws do not enjoy the prohibition against JPML transfers.

"[States] are subject to the JPML process and therefore they do not get to remain in their chosen court, resulting in serious delays in their cases and additional injuries to the citizens of their states,” Buck's statement says.

Specifically, H.R. 3460 would make a change to Section 1407 of Title 28 of the U.S. Code, which addresses multidistrict litigation and the JPML’s authority to transfer “to any district” civil actions from different jurisdictions involving common questions “for the convenience of the parties and witnesses” and to “promote the just and efficient conduct of such actions.”  

The bill proposes that subsection (g), which exempts the federal government from such transfers, be amended as follows: “Nothing in this section shall apply to any action in which the United States or a State is a complainant arising under the antitrust laws.” 

Subsection (h) goes on to state that the JPML may consolidate and transfer “with or without the consent of the parties” any action brought under section 4C of the Clayton Act. If enacted, H.R. 3460 would eliminate subsection (h) altogether.  

State AGs have been active antitrust law enforcers recently, especially in the tech sector. The Attorney General for the District of Columbia just sued Amazon, charging the company’s abuse of its monopoly power has resulted in higher prices for consumers. This follows state AG actions against Facebook and Google. Last month Google lost a motion to transfer an action against it by a group of attorneys general from Texas to its home state of California.

The questions are, however, whether more AG antitrust litigation means better antitrust enforcement and why state AGs prefer federal courts rather than their home state courts.