Senate, Aiming at Big Tech, Passes Bill To Strengthen State Antitrust Enforcement

On June 14, 2022, the Senate passed a bill designed to give greater enforcement power to state attorneys general who bring suit under federal antitrust law. The State Antitrust Enforcement Venue Act passed the Senate by unanimous consent and now heads to a vote in the House, where it has already cleared committee. If passed, it will mark the first successful step in a broader bipartisan effort by lawmakers to introduce antitrust reform legislation aimed at regulating large technology companies.

As described in a prior Competition Corner post, if enacted, the bill will prevent the transfer and consolidation of suits brought by state attorneys general under federal antitrust law—an exception to the multidistrict litigation (MDL) rules that already exempt certain antitrust actions brought by the federal government.

Before passing the Senate, the bill was amended to strike the retroactive effective date provision included in the original version. The original June 1, 2021, effective date would have affected an ongoing antitrust suit against Google. That suit was originally brought in Texas by an alliance of state enforcers, but it was transferred to New York and consolidated with other pending actions by the Judicial Panel on Multidistrict Litigation (JPML).

Although the bill has been touted as eliminating “the inefficiencies and obstacles the states face in enforcing the federal antitrust laws,” transfer and consolidation of antitrust cases can streamline adjudication, especially by consolidating discovery, promoting convenience for witnesses, and reducing the total workload for judiciary staff members. The non-partisan Congressional Budget Office has estimated that this bill would increase administrative costs for the judiciary.

Representative Ken Buck (R-CO), a lead sponsor of the bill in the House, commented that the Senate’s passage of the State Antitrust Enforcement Venue Act shows that the “dam is breaking” and marks a “new era of antitrust reform and proof-of-concept for a bipartisan reform coalition of conservatives and progressives.” Indeed, antitrust reform legislation aimed at reining-in Big Tech may see votes this summer. Despite initial opposition by Congresspeople from California, bills—including the American Choice and Innovation Online Act or the more narrowly tailored Open App Markets Act—appear to have enough support to pass the Senate.

Winston & Strawn Summer Associate David Phillips Arrey also contributed to this blog post.