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Tussle between Congress and courts lurks in Google's JPML bid

6 minute read

REUTERS/Morris Mac Matzen

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(Reuters) - On Thursday, the Judicial Panel on Multidistrict Litigation will hear arguments on Google LLC’s motion to consolidate dozens of antitrust cases – including an enforcement action in federal court by 15 state attorneys general – accusing the company of abusing its monopoly over online display advertising.

Google contends the online advertising litigation cries out for consolidation to streamline discovery and avert contradictory pre-trial rulings in cases asserting overlapping allegations. The AGs, led by Texas Attorney General Ken Paxton, oppose consolidation, arguing that their case, already well launched in Plano, Texas, will be bogged down if their enforcement action is lumped together with private class actions.

The JPML, of course, hears that sort of argument every time it meets. But there’s a much more unusual issue lurking in tomorrow's arguments before the panel – implicating the JPML’s own authority over state AG actions, as well as Congressional power to shape ongoing litigation.

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If the panel judges follow up on the latest filings by Google and the state AGs, Thursday's argument could be quite spicy.

The controversy centers on proposed legislation introduced in both the House of Representatives and the Senate in late May, days after Google filed its consolidation motion at the JPML. The parallel bills, entitled the State Antitrust Enforcement Venue Act of 2021, proposed a carve-out in the law that empowers the JPML to consolidate litigation to shield antitrust enforcement actions by state attorneys general from the MDL panel's authority.

There’s already an exception in the JPML’s jurisdiction for antitrust enforcement actions brought by the federal government. The new law would similarly exempt state AG suits from MDL consolidation. Its bipartisan sponsors – including Ken Buck (R-CO) and David Cicilline (D-RI) in the House and Mike Lee (R-UT) and Amy Klobuchar (D-MN) in the Senate – said state AGs should be on the same footing as federal regulators when it comes to enforcing antitrust laws.

House co-sponsor Buck explicitly referred in his press release announcing the bill to his goal of stopping “Big Tech monopolists” from “gaming the judicial system.” Buck previously singled out Google at a House Judiciary subcommittee hearing in March, criticizing the company for filing a motion in the AGs’ Texas action to transfer the case to Google’s home court in San Francisco. Buck argued in the March hearing that blocking consolidation of AG enforcement actions “would eliminate gamesmanship and forum shopping” by companies like Google.

The state AGs, represented by the Lanier Law Firm, liberally cited the proposed legislation and lawmakers’ comments in their brief opposing Google’s motion at the JPML. (The MDL panel is Google’s last hope for transferring the AGs’ case because U.S. District Judge Sean Jordan of Plano denied its transfer motion in the Texas case on May 20.)

The AGs’ brief included a warning to the JPML: The venue bills were retroactive to June 1, 2021. So even if the MDL panel consolidated the AG actions, that consolidation could be undone if Congress passed the bill exempting state AG antitrust enforcement actions from the panel’s authority.

“To guard against this, the panel should either exclude the (AGs’) enforcement action from any centralization or respect the plaintiff states’ choice of forum by centralizing all Google ad tech litigation in the Eastern District of Texas,” the brief said.

Google seems to have made a strategic decision to mostly ignore the proposed bills in its reply brief in favor of consolidation at the JPML. It said only that the bills were not yet law and that if the legislation passed, “it could well present due-process and separation-of-powers issues as applied to pending matters.”

Then the threat of the potential law deepened. Google's reply brief was filed on June 2. A few weeks later, on June 24, the House Judiciary Committee voted overwhelmingly (34-7) in favor of the bill shielding state AG antitrust enforcement actions from JPML consolidation. Just a month after the bill was introduced, and without holding a hearing on it, the committee sent the proposal to the full House of Representatives.

The AGs notified the JPML of this development in a July 22 filing that predicted a House vote “in the near future” and a Senate Judiciary Committee vote as soon as July 29. If the fast-tracked legislation became law, the AGs said, Google’s transfer motion would be moot.

But the state AGs were not the only interested parties tracking the bills. On July 19, the Administrative Office of the U.S. Courts sent a letter to Republican House Minority Leader Kevin McCarthy, urging him to delay further consideration of the House bill until the Judicial Conference and the JPML have had a chance to analyze the legislation.

U.S. District Judge Roslynn Mauskopf of Brooklyn, who heads the U.S. Courts' Administrative Office, reminded legislators that the only previous Congressional amendment of the law creating the JPML was in 1976 – and that amendment specifically authorized the MDL panel to consolidate suits by state AGs on behalf of their citizens. To change the law to exempt AGs’ antitrust enforcement actions, the judge told Congress, could reduce efficiencies in antitrust litigation, particularly because state AGs’ claims are typically similar to those by purchasers alleging antitrust injuries. States, Mauskopf said, might even end up worse off by losing their ability to influence antitrust MDLs.

As you would expect, Google’s lawyers at Wilson Sonsini Goodrich & Rosati and Freshfields Bruckhaus Deringer notified the JPML about the Mauskopf letter in a supplemental filing on Tuesday.

It’s a good bet that the JPML will be interested in the impact of prospective legislation to curtail its authority. And now that the House bill seems to be rocketing toward a vote by the full chamber, I would not be surprised if Google gave more heft in oral arguments to the potential constitutional concerns it mentioned glancingly in its reply brief, considering that one of the House bill’s co-sponsors talked about the effect of the legislation on Google’s case.

State AGs’ lawyer Mark Lanier didn’t respond to my email query. Google counsel Boris Feldman of Freshfields referred me to the company’s briefs.

Read more:

More U.S. states join Texas-led antitrust lawsuit against Google

Location, location, location: Google, AGs spar over venue in online ad antitrust case

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.

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