By Letitia James & Douglas Peterson
October 6, 2021 at 5:00 am ET
There is broad bipartisan agreement that our country’s economy is being harmed by the effects of unprecedented corporate concentration across critical industries and supply chains. The results are higher prices, lower quality and fewer choices for consumers. Moreover, small businesses face higher and higher barriers to entry erected by powerful monopolists — diminishing their ability to compete and squashing the dreams of the entrepreneurs who are the engine of our economy.
To reset this balance, state attorneys general — in partnership with the federal antitrust agencies — have stepped up to ensure robust enforcement in recent years. One critical lesson, however, is that we need more enforcement capacity — not less — to match the well-financed giants that are threatening our economic progress.
That is why we urge Congress to act swiftly to confirm that states enforcing federal antitrust laws stand on equal footing with federal enforcers. Congress has the opportunity to take an important step toward that goal by passing the State Antitrust Enforcement Venue Act. This bill would prevent defendants from using procedural tricks to slow down and increase the cost of state antitrust actions.
Antitrust enforcement by federal authorities alone has never been sufficient to fully protect competition. State attorneys general have been actively enforcing federal and state antitrust laws since many of those laws were first passed at the end of the 19th century.
The National Association of Attorneys General was founded in 1907 with the intent to facilitate collaboration among attorneys general to help them address antitrust issues related to the Standard Oil Company. State attorneys general have played an important role in preserving competition by bringing antitrust cases for well over a century. Since 1976, when the Hart-Scott-Rodino Act became law, state attorneys general have been authorized to bring cases in federal court on behalf of their citizens for violations of federal antitrust law.
Although state and federal enforcement authorities often act jointly or in parallel, states routinely act on their own to address local or regional issues and even on issues of national significance. This dual-enforcement capacity allows states to be both a force multiplier for federal action and, where necessary, a check on federal inaction.
Unfortunately, due to a statutory gap, some courts have incorrectly treated state actions as though they have been brought by private parties and without the deference that should be given to government enforcers acting in their sovereign capacity. That has meant that while the federal government enjoys an unquestioned privilege to litigate its antitrust enforcement actions in the court where they were originally filed, state antitrust enforcement actions can be transferred to another part of the country by the Judicial Panel on Multidistrict Litigation, which has the authority to transfer civil cases filed in multiple federal judicial districts into one court.
Ensuring that the case cannot be transferred to another federal court prevents costly delays that would otherwise keep state attorney general cases from moving forward quickly and could cost taxpayer dollars before the case even gets going.
As it currently stands, however, courts have interpreted the statute’s silence as permitting the transfer of state antitrust enforcement actions, depriving states of the ability to choose their preferred venue for the cases they bring under federal antitrust law. Apart from the cost and delay associated with the transfer itself and litigating in forums in another region of the country, the current system allows state enforcement actions to be consolidated with private plaintiffs as part of the multidistrict litigation process.
These matters often involve class actions and countless plaintiffs’ actions that have procedural and legal issues that are distinct from government enforcement actions and require lengthy discovery (and messy discovery disputes). Those disputes are often unnecessary in government actions, which are typically brought after an investigation. The transfers result in unnecessary cost and delay, which feeds into the tactics of defendants who have massive resources to deploy in an effort to delay accountability and delay justice.
Congress can prevent these burdensome and expensive delays. Earlier this year, the chairs and ranking members of the U.S. House of Representative’s Subcommittee on Antitrust, Commercial and Administrative Law and the Senate’s Subcommittee on Competition Policy, Antitrust, and Consumer Rights jointly introduced the State Antitrust Enforcement Venue Act of 2021. The bill has already been voted out of both the House and Senate Judiciary committees with bipartisan support.
Further, in an era of partisanship, the State Antitrust Enforcement Venue Act has notable backing from across the political spectrum: It has been endorsed by almost every state attorney general in the country, including every member of the National Association of Attorneys General’s Antitrust Committee.
Attorneys general have always been leaders in antitrust enforcement, but the environment is evolving quickly. Cases have become more complex, and some defendants have seemingly unlimited resources. As chief legal officers, we will always fight for the people of our state. To allow us to successfully continue to represent our states and our citizens in antitrust cases, Congress must pass State Antitrust Enforcement Venue Act.
Douglas Peterson, a Republican, is the attorney general of Nebraska. Letitia James, a Democrat, is the attorney general of New York. James and Peterson serve as the co-chairs of the National Association of Attorneys General’s Antitrust Committee.
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