WASHINGTON (Legal Newsline) - The Antitrust Enforcement Venue Act of 2021 could create a path for aggressive state attorneys general to drive national policy, according to a conservative think tank policy director.
“What I've advocated for consistently in my writing is avoiding what I call reverse federalism or anti-federalism,” said James Copland, senior fellow and legal policy director at Manhattan Institute for Policy Research. “In other words, what I don't want to empower is a state or local official to decide national questions.”
Copland was responding to letters of opposition that were submitted to Senate Majority Leader Chuck Schumer, House Speaker Nancy Pelosi, and members of congress by the Lawsuit Reform Alliance of New York (LRANY) and the Progressive Policy Institute (PPI) about the Antitrust Enforcement Venue Act of 2021, which passed out of the House and Senate Judiciary Committees without amendment.
“Categorically eliminating State antitrust actions from MDLs, as this legislation would do, is misguided and unnecessarily removes complex cases from a process that could help lead to more efficient resolutions,” wrote Phil Goldberg, director of the Center for Civil Justice at PPI, in his letter. “To be clear, this legislation does not facilitate justice; it facilitates excessive and burdensome litigation.”
Currently, the Judicial Panel on Multidistrict Litigation ( JPML) cannot transfer an antitrust case brought by the United States from one federal district court to another.
“My basic thought is that MDL courts have a reason for being and, in general, we ought to respect those reasons,” Copland told Legal Newsline. “MDL is better than the alternative of having 50 different judges with different venues.”
LRANY warned in its letter that the proposed legislation would result in forum shopping.
“We will see a host of consequences that imperil the efficiency and reliability of today’s current antitrust litigation framework,” wrote Tom Stebbins, LRANY executive director in his Aug. 2 letter. “Perhaps most concerning is the potential for competing pre-trial rulings. By allowing state Attorneys General to bring separate – yet identical – cases to courts across the country opens up the possibility of multiple states reaching differing conclusions based on the same facts.”
At the National Association of Attorney General Capital Forum in Washington, D.C. last week, New York Attorney General Letitia James hosted a panel discussion on state-federal cooperation in antitrust matters with Jonathan Kanter, Department of Justice head of antitrust, and Federal Trade Commission (FTC) Chair Lina Khan.
“The New York Attorney General wants to be aggressively pursuing enforcement actions in the antitrust space and doesn't want to go through a federal MDL because the New York attorney general would rather drive national policy from New York regardless of what the other 49 states think and that's precisely why we should be nervous about the outcome,” said Copland, author of The Unelected: How an Unaccountable Elite is Governing America. “The New York Attorney General’s office has a history of being aggressive, which dates all the way back to Eliot Spitzer.”
The proposal has not yet been scheduled for votes in the House or Senate.
“It may be that certain officials in the Biden administration, including within the FTC, have a broad desire to open up forms of litigation that create pressure on businesses,” Copland added.
“You have the potential for a significantly more aggressive sort of antitrust regime generally, but I also think you have the potential for some significant forum shopping and getting cases in front of judges that have idiosyncratic views that are much more aggressive than the mainstream thinking on antitrust law, which will allow governments, ultimately, to have more power over business.”