Federal Judges Raise Concerns With Antitrust Venue Bill
Federal judges are speaking out against a recent bill, The State Antitrust Enforcement Venue Act. The bill would block federal judges from centralizing antitrust litigation brought by State Attorneys General through the well-established Multidistrict Litigation process.
Here are some of their concerns.
Federal judges noted the bill’s attempt to restrict the judiciary is unprecedented. “Congress to date has never amended Section 1407 to restrict the Panel’s ability to centralize civil actions.”
Federal Judges have requested the opportunity to review the bill before further consideration by Congress. In a letter on behalf of the Administrative Office of the United States Courts to members of Congress, US District Judge Roslynn R. Mauskopf noted. “Neither the Judicial Panel on MDL (‘Panel’) nor any of the relevant committees of the Judicial Conference of the United States (‘Conference’) have had the opportunity to analyze this bill thoroughly.”
— The judges concluded: “We request that the Committees of the Judicial Conference and the Panel have the opportunity to conduct more in-depth analysis of the legislation before any further consideration by Congress.”
Centralizing cases before a single judge minimizes duplicative processes and inconsistent rulings, highlighted the judges in the letter. “In general, MDL litigation is most efficient when all related actions are centralized before a single judge. Doing so minimizes the potential for duplicative discovery and motion practice, eliminates the potential for inconsistent pretrial schedules or rulings, and conserves the resources of the parties, counsel, and the Judiciary. . . . This ensures that pretrial proceedings will be conducted in a streamlined manner leading to a just and expeditious resolution of all actions to the overall benefit of the parties.”
In contrast, under the bill, parties and witnesses could be subject to duplicative discovery on the same facts in different courts. ”For instance, such actions may be subject to different pretrial schedules, parties and witnesses might [be] subject to duplicative discovery, and the courts might issue inconsistent pretrial rulings pertaining to the same parties.”
Likewise, under the bill, multiple courts could issue inconsistent rulings, noted the judges. “It also is possible that substantively inconsistent rulings could issue — such as with respect to market definition or which standard of review (per se or rule of reason) applies to a given case.”
Federal judges agreed that this is particularly concerning given the nationwide scope of antitrust suits. “Given the nationwide scope of these antitrust litigations, such inconsistent rulings may complicate proceedings and sow confusion not only among the courts and parties, but also in the marketplace.”
State and private litigations on the same facts are best heard before a single judge, federal judges added. “A single MDL judge usually will be best positioned to coordinate state and private litigations.”
Ironically, the bill could weaken the power of states to influence their cases, reminded the judges. “While States might gain greater autonomy with respect to their individual actions, they would lose much of their ability to participate in and influence the centralized proceedings.”
The bill would also make it hard for judges to coordinate related state and federal suits, noted the judges. “Excluding State antitrust actions from centralization could undermine the Panel’s efforts to facilitate coordination and cooperation between private antitrust litigation and antitrust actions brought by the United States.”
At one such MDL hearing last week, federal judges on the Judicial Panel for Multidistrict Litigation expressed skepticism with arguments against centralization.
— US District Judge Matthew F. Kennelly repeatedly pressed lawyers objecting to MDL, as reported by Law360. “Aren’t some of those same folks in your class?”
— “I think that’s true,” the attorney replied.
— “So how does it make sense then to have these two cases, which basically overlap … in two different places? I’m just not getting that. I have to say the opposition from your folks and the other folks on centralization is a little perplexing.”
Congress should take more time to consider the impact of this bill on the Judicial branch.