[co-author: Stephanie Kozol]*
On June 5, the Judicial Panel on Multidistrict Litigation (JPML) in Texas v. Google, LLC ruled that the State Antitrust Enforcement Act of 2021 applies to pending state antitrust enforcement actions, including to actions the JPML previously centralized. Specifically, the JPML ordered that a 16-state multistate attorneys’ general antitrust litigation against Google should be remanded to federal court in Texas.
The JPML’s order is significant because it could lead to remand in several other mammoth multidistrict litigations (MDLs) where state AG litigation remains pending. The order also raises several procedural questions, chief among them the issue of how the states’ unified, amended complaints will be remanded, and whether the plaintiffs waive the right to litigate in their preferred venue. In addition, questions remain as to whether the ruling will withstand appellate scrutiny.
What Happened
In Texas v. Google, the Texas AG sued Google in the Eastern District of Texas, alleging that Google built an online display advertising monopoly. In 2021, the JPML centralized the Texas-led enforcement action with some 20 similar lawsuits in a multidistrict litigation in the Southern District of New York. Subsequently, in December 2022, Congress passed the Consolidated Appropriations Act, which amended 28 U.S.C. § 1407(g) to exempt state antitrust enforcement actions arising under federal antitrust law from multidistrict litigation.
Based on Congress’ enactment of the Consolidated Appropriations Act, a Texas-led coalition of 16 states moved to remand Texas v. Google to the Eastern District of Texas, arguing that the amendment applied to all pending state antitrust enforcement actions, including previously centralized actions.
The JPML ruled in Texas’s favor, determining the statute applied to pending cases. It noted that the Supreme Court’s decision in Landgraf v. USI Film Prods. established a presumption against retroactive legislation, but it highlighted the Landgraf court’s statement that “[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity.”
The JPML then engaged in a two-part test to determine the proper temporal reach of the new statute. First, it considered whether the statute expressly addresses retroactivity. Because the statute contains no express command, the JPML looked to whether it would have a “retroactive effect” by (1) impairing the rights a party possessed when it acted, (2) increasing a party’s liability for past conduct, or (3) imposing new duties. The JPML concluded the amendment was a “plainly procedural rule” that did not regulate primary conduct and could apply to previously centralized suits without raising concerns about retroactivity. Accordingly, the JPML remanded the case to the Eastern District of Texas.
However, whether the order will be upheld remains to be seen. On June 12, Google filed an emergency motion for stay pending appeal by writ of mandamus. In its motion, Google argued that the panel erred in its Landgraf analysis by relying on the Venue Act’s silence, with respect to its temporal reach, to proceed to the second step of the Landgraf analysis. In doing so, Google argued that the panel ignored Supreme Court precedent rejecting the notion that the only two rules to determine a statute’s temporal reach are either an express command or step two of Landgraf.
Google also argued that Landgraf step-two analysis is erroneous because the “relevant activity,” i.e., transfer, already occurred two years ago when the panel transferred the plaintiffs’ case for coordinated proceedings in the Southern District of New York.
Why It Matters
The JPML’s ruling is significant because it provides state AGs with an opportunity to expedite their pending claims, which often are delayed during the MDL process. Indeed, the explicit purpose of the Venue Act is to give state AGs a “home-field advantage” by preserving their ability to litigate in their preferred venue. On the other hand, the ruling prevents enforcement targets from avoiding duplication of discovery, receiving inconsistent rulings during the pre-trial phase, and conserving judicial resources.
The JPML’s ruling is also noteworthy because it may cause other state enforcement actions to be remanded. In this case, the states requested the JPML to remand the suit to the Eastern District of Texas (known for its expedited trial schedule), but it is unclear how the states’ consolidated claims will be remanded in the future. Moreover, the JPML’s order left open the possibility that a state could waive its venue rights. How a plaintiff might waive such a right is yet to be seen.
The final question is whether this case will withstand appeal. As previously mentioned, Google moved to stay the JPML’s decision pending appeal, and the parties are currently briefing the issue. Given the effect of the JPML’s decision on other pending antitrust enforcement cases, we will likely monitor the decision closely.
*Senior Government Relations Manager In The State Attorneys General Department
