Rep. Ken Buck’s Irrational Spite Of Tech Companies May Have Screwed Up Another Antitrust Bill

Politics

from the spite-is-no-way-to-legislate dept

It’s kinda weird how the GOP’s pure hatred and spite towards tech companies, and their desire to exact maximum punishment rather than make good policy, keeps blowing up bills that might otherwise pass. We’ve talked plenty about how Republicans have effectively torpedoed the big tech antitrust bill by insisting that it must include provisions that will be used to sue tech companies over antitrust for… suppressing disinformation. And then there was Ted Cruz (at least temporarily) blowing up a (terrible) journalism antitrust bill by bringing content moderation into it.

And now it appears that Rep. Ken Buck may have destroyed an otherwise perfectly sensible antitrust bill. Back when it was introduced in a package of a bunch of (mostly bad) antitrust bills, we noted that Rep. Joe Neguse’s Merger Filing Fee Modernization Act seemed perfectly fine. It would adjust the fees companies pay when larger mergers happen, greatly increasing the really, really big merger fees (and actually slightly decreasing fees paid for mergers under $500 million). It’s expected that this would provide a lot more funds to the FTC and DOJ to do more antitrust work, and that seems reasonable as well.

The bill had gained some momentum of late, with the White House stumping for it. But… yesterday a bunch of Democrats noticed that Rep. Ken Buck snuck in a “modified version” of the bill, tacking on one of his own spiteful antitrust bills that wasn’t really moving. It’s the State Antitrust Enforcement Venue Act, which at the last minute was bundled with the fee modernization plan.

As it stands now, when big antitrust lawsuits are filed, the courts are able to consolidate them and make sure they’re dealt with in the court that is most convenient for all parties in the litigation. This makes sense for a bunch of reasons. However, under Buck’s SAEVA, that will be prevented, and politically-minded Attorneys General (i.e. grandstanding politicians who want their names in headlines) can effectively jurisdiction-shop their antitrust lawsuits and multiple such lawsuits can happen all over the country, without the ability for them to be consolidated. The Administrative Office of the Courts actually wrote a letter protesting the bill, noting that the whole thing would create a huge mess for the courts:

Excepting State antitrust actions from centralization can only increase the number of actions (and, hence, the number of independent parties and courts) outside the ambit of the MDL. Related actions that cannot be centralized can introduce case management difficulties into the MDL. Parties and courts in actions pending outside the MDL may (either actively or inadvertently) undermine attempts to coordinate and streamline discovery and pretrial practice in the litigation. For instance, such actions may be subject to different pretrial schedules, parties and witnesses might by subject to duplicative discovery, and the courts might issue inconsistent pretrial rulings pertaining to the same parties. 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. 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.

So, now, because Buck was able to piggyback his own bad bill, which he sees as a tool to punish big tech by having every AG sue them in their home state, leading to the companies dealing with tons of competing antitrust claims, many who previously supported the Neguse bill are urging their colleagues to back off their support.

Reps. Zoe Lofgren, Eric Swalwell, Lou Correa, Scott Peters, and Jimmy Paneta sent around a letter to their colleagues calling this nonsense out, and urging them to vote no on this bill (which, again, was basically fine without Buck’s nonsense):

The Title III provisions would undermine a component of our judicial system that has functioned fairly, justly, and efficiently for more than 50 years. Under current law, antitrust cases that are pending in different federal courts, and that involve common questions of fact, may be transferred to a single court district for coordinated or consolidated trial proceedings. Congress deliberately crafted this system (in the Hart-Scott-Rodino Act in 1976) whereby senior federal judges – not some of our nation’s politically-motivated State Attorneys General – determine which cases should be most efficiently and justly resolved through centralized litigation. Title III would exempt antitrust cases brought by State Attorneys General in federal court from this deliberative system.

Title III would allow multiple states to simultaneously pursue their own separate actions against the same antitrust defendants in numerous different federal courts. Businesses, inevitably, would find themselves facing multiple lawsuits, in courtrooms across the country, burdening an already-overloaded court system. Additionally, unlike cases brought by private plaintiffs, the businesses would have no way to consolidate the cases into a single fair proceeding. That significantly increases the risk of conflicting judgements, and those judicial conflicts are exactly what Congress sought to avoid when it originally passed Hart-Scott-Rodino Act in 1976.

It’s kind of amazing. Basically, the GOP is just so obsessed about punishing big tech that it’s destroying any chance to craft useful policy.

Filed Under: antitrust, joe neguse, ken buck, merger filing fee modernization act, state antitrust enforcement venue act, zoe lofgren