Just over a year has passed since President Biden signed the State Antitrust Enforcement Venue Act (the State AG Venue Act or Act) into law, and state attorneys general (AG) have already taken advantage of the law’s provisions.
The State AG Venue Act prohibits private companies from invoking 28 U.S.C. § 1407, otherwise known as the multidistrict litigation (MDL) statute, to transfer antitrust cases brought by state AGs, between federal courts. Previously, defendants could seek to consolidate certain antitrust cases filed across different jurisdictions into an MDL. But now, under the Act, state AGs can prevent defendants from transferring antitrust cases to more favorable venues. A comprehensive overview of the law can be found in our previous article.
AGs have wasted no time invoking their rights under the Act. In October 2023, for the first time, a group of AGs requested that a case brought against Google for engaging in allegedly anticompetitive business practices be remanded back to Texas. Before the State AG Venue Act was passed, the case had been consolidated in New York with other similar private actions. Based on the new law, however, the Second Circuit held that Google failed to show “exceptional circumstances” to overturn a decision by the Judicial Panel on Multidistrict Litigation (JPML) to return the case to Texas.
Shortly thereafter, in November 2023, state AGs from Nebraska, Connecticut, New York, and North Carolina asked the JPML to remand their antitrust actions against several generic drugmakers from Pennsylvania federal court to Connecticut federal court, where the cases were originally filed. The actions, which accused several generic drugmakers of fixing the prices of generic drugs, had been pending since before the State AG Venue Act was passed. However, the state AGs argued that the law should be applied retroactively given the Second Circuit’s decision in the case against Google. In December, the Pennsylvania federal judge overseeing the MDL informed the panel that she did not recommend granting the motion for transfer. The decision did not comment on the state enforcers’ assertions regarding retroactivity of the Act. Instead, it focused on the extensive work the court had already done to prepare the cases for settlement or rulings on the merits.
Most recently, in January of this year, a federal judge in Arkansas granted an Arkansas state AG’s bid to keep an antitrust lawsuit against companies Syngenta and Corteva in the state. The companies had argued that the case should be transferred to North Carolina, where they currently face similar claims regarding unfair pricing of pesticides. But the judge held that the companies’ interests were not so compelling as to overcome Arkansas’ choice of forum under the State AG Venue Act.
State AGs will likely continue to aggressively enforce the right under the State AG Venue Act to prosecute cases on their home turfs. As a result, businesses should prepare to defend against multijurisdictional antitrust lawsuits.