PLANO, Texas (Legal Newsline) - A three-word change to federal law pushed by Republicans in Congress has ensured that the State of Texas will be in friendly territory when it faces off against Google in a multistate antitrust case scheduled to begin trial next year.
The words “or a State,” inserted into a section of the Consolidated Appropriations Act signed by President Biden on Dec. 29, 2022, exempted antitrust suits filed by state attorneys general from a law that shifts most other multidistrict litigation to a single federal court for pretrial procedures.
As a result, Google will have to defend itself against the lawsuit by Texas and more than 10 other mostly Republican states in federal court in Plano, outside Dallas, instead of in New York, where a judge is overseeing similar litigation accusing the search giant of monopolizing the online advertising market. Google also faces an antitrust suit in Virginia filed by the U.S. Justice Dept. and several Democratic states.
Texas is represented by Houston attorney Mark Lanier under a contract Texas AG Ken Paxton estimates could cost the state $43 million or more. Lanier identifies himself as a conservative Republican but also an outspoken opponent of tort reform, which GOP Sen. Lindsey Graham has also opposed.
The wording change was sponsored in the Senate by Mike Lee of Utah and in the House by Rep. Ken Buck of Colorado, both Republicans. The bill was supported by all 50 state attorneys general as well as Federal Trade Commission chair Lina Khan and Jonathan Kanter, head of the Justice Dept. antitrust division.
Proponents said the law would bolster the power of states to enforce antitrust law, but the Google case also demonstrates how it allows Republicans to take on a West Coast tech giant unpopular with their constituents.
In a Jan. 2 order, U.S. District Judge Sean Jordan, a Donald Trump appointee, set a March 2025 trial date for the Google case. “We appreciate the court’s rigorous schedule and anticipate being ready for trial on the date given," said Lanier.
The arguments for exempting state antitrust lawsuits from multidistrict litigation were laid out in a 2019 article by Roger M. Michalski, a professor at the University of Oklahoma College of Law, although he was hardly supporting Republican interests. In that article, Michalski said the MDL statute focused on streamlining complex litigation and conserving judicial resources but had a “blind spot” when it came to “broader societal and governmental interests.”
The solution, he said, was to disperse lawsuits by governmental entities in courts across the nation so they could be heard by “a local judge and jury that are mindful of local conditions and sensibilities.”
“I frankly never thought it was a liberal or conservative idea,” said Michalski in an interview. He acknowledged some defendants might be forced to settle rather than fight government plaintiffs on multiple fronts at the same time.
“Some defendants may feel they may be forced to settle, but I am not sure Google is in that situation,” he said. “If you draw a judge who’s really one-sided on your side, of course you’re thrilled.”
When he proposed the change in venue rules, Rep. Buck said it was intended to give state AGs a “home field advantage” and allow them to remain in their “preferred venue.”
Google argued unsuccessfully that the multidistrict litigation panel retroactively applied the law to its case nine months after it was passed and as it was making “substantial progress” toward a settlement. The company described the Texas case as “deeply flawed” after a federal court dismissed several of the state’s claims in 2022.