Senate Judiciary this AM is considering the state AG antitrust bill that would let the states bypass the JPML for antitrust suits.
Sen. Mike Lee (R-Utah) says the bill would give state AGs "equal footing" with federal enforcers and shield them from having to coordinate with slower-moving private suits. It "recognizes the unique and central role states play in enforcing our antitrust laws"
Lee: “States are sovereign entities and they are entitled to pursue law enforcement actions to protect their citizens in the venue of their choice”
Lee says the retroactivity in the bill doesn't change any legal standards only legal process, so it's not as though a company thought something was legal and now it's not.
Any attempt to remove the retroactivity “would only help Google,” Lee says.
Sen. Amy Klobuchar (D-Minn.) says the bill would eliminate “inefficient delays” to state AG antitrust suits.
Sen. Alex Padilla (D-Calif.) says he cannot support the bill as drafted and it would make a "significant change to how courts hear antitrust cases" but the committee hasn't heard from the judiciary "who would have to live with the consequences" of the bill.
Padilla cites the July 19 letter from the Administrative Office of the Courts on the bills, which asked for more time to study the bill. He also has concerns about the retroactively because it would undo the JPML's decisions to move the Google case to New York.
Padilla says he is offering an amendment to eliminate the retroactivity portion. "I believe litigants and the courts are owed certainty about the rules" they are playing by, he says.
Padilla offers the amendment and then withdraws it. Says he will continue to work on it before it goes to the Senate floor, because Congress shouldn't be interfering in active litigation.
Sen. John Cornyn (R-Texas) says he has concerns with "some parts" of the bill (doesn't specify what) and wants the Judicial Conference to weigh in. But as a former AG himself, he supports putting the states on the same footing as the federal enforcers.
"The states are not private ordinary litigants," he says and their "sovereignty should be recognized and protected"
Klobuchar: On retroactivity, "I believe those arguments are misplaced." The bill makes a procedural not substantive change and doesn't raise due process issues. Parties in lawsuits don't have a right to any procedural rules, she says, citing a Supreme Court decision.
Klobuchar points out that under MDL existing rules, the states case will be sent back to Texas for trial and is only up in NY for pretrial proceedings.
Klobuchar says the courts are overly concerned about judicial efficiency and that is coming at the expense of the states' desire for swift resolution of their cases. She also dings the Admin Office of the Courts for quoting verbatim from Google's briefs without citing.
"People should look at that language before they cite this again," Klobuchar says, tossing the letter on the dias.
Lee says absolutely nothing has happened in the Google case up in NY and discovery won't open anytime soon in that action. It was transferred to a venue different from and far from the one picked by the states. "It's with good reason we put government in a different category."
"Google is really good at coming up with answers," Lee says. "Apparently in Google's case they were able to discern almost exactly what the Administrative Office of the Courts say in advance. ...It's stunning the resemblance between arguments made by Google" and the courts.
Sen. Ted Cruz (R-Texas) asks to be added as a cosponsor of the bill and says we should not be doing any "special favors for Google" that would protect it from its anticomp conduct. The courts "parroting verbatim Google's pleadings" raises serious questions, he says.
Sen. Dick Durbin (D-Ill.) says he has questions about the retroactivity provision as well. Saying it merely procedural belies how litigation occurs. "Venue is more than just a procedural issue in many cases," he says.
Padilla says he remains concerned about interfering in an existing active lawsuit versus prospective policy issues and reiterates his opposition to involvement in active litigation.
Sen. Richard Blumenthal (D-Conn.) says states are playing a more active role in antitrust and states should be encouraged to protect their citizens and businesses. He opposes any amendments related to retroactivity.
The Senate Judiciary favorably reports the bill by voice vote.

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