Capitalizing on Judicial Antitrust Experience

• Publication year: 2015
• Author: By Peter K. Huston

CAPITALIZING ON JUDICIAL ANTITRUST EXPERIENCE

By Peter K. Huston¹

I. INTRODUCTION

Federal antitrust cases are rarely simple. The statutes themselves are short enough and written in plain language, but they are broad. Courts have had to layer on all sorts of complex doctrines and constructs over the last 100-plus years as they have applied the statutes to real-world disputes. The list of thorny concepts is long: "Relevant product and geographic markets," "unilateral and coordinated effects," "conscious parallelism," "Illinois Brick/pass on," "dual distribution," "quick look," "recoupment," "foreclosure," "small-but-significant-non-transitory-increases-in-price (SSNIP)," and on and on. In addition, the influence of economics on antitrust law has steadily increased and econometric tools have become more sophisticated. And to make things even more complicated, both antitrust law and economics are moving targets. Cases decided in the past can reflect outmoded thinking, even if they haven't been specifically overruled, creating a minefield for the uninitiated.

Of course, it becomes a little easier to mentally wrestle difficult antitrust concepts to the ground the more one is exposed to them. But many judges have little, if any, experience with antitrust cases. Others get a relatively steady diet. While hundreds of antitrust cases are filed in the federal court system every year, they are not filed evenly across all 94 districts. For a variety of reasons a few districts get far more than their fair share. In fact, statistics from the last few years show that more civil antitrust cases have been filed in the top five districts—the Northern District of California, the Southern District of New York, the Eastern District of Michigan, the Eastern District of Pennsylvania, and the District of New Jersey—than all of the other 89 districts combined.²

It stands to reason that the districts that routinely deal with antitrust concepts will have an easier time with them than those that hardly ever see them. On the other hand, we generally expect our federal judges to be able to handle whatever legal issues come their way,³ and a judge's breadth of experience across disciplines is perhaps as valuable as a depth of experience in the field relevant to any given case. For these reasons, creation of specialized antitrust courts, which would require an Act of Congress (that no one appears to be clamoring for), does not make sense. But a district's experience with antitrust law can and should give it an edge in terms of where a case lands in the context of a motion to transfer venue.

[Page 113]

II. PLAINTIFF'S CHOICE OF VENUE AND MOTIONS TO TRANSFER

Venue in antitrust cases is often proper in any judicial district in which a defendant is subject to the court's personal jurisdiction.⁴ For many cases that is most districts because the defendants transact business nationally,⁵ giving plaintiffs multiple jurisdictions from which to choose. Indeed, it is not uncommon to see private antitrust class actions pop up in many districts simultaneously following a precipitating event, such as the announcement of a Department of Justice investigation. In those circumstances, the Judicial Panel on Multidistrict Litigation, a group of seven circuit and district judges from around the country appointed by the Chief Justice of the Supreme Court, is typically called on to decide where to consolidate the cases for pretrial purposes. The panel decides motions to transfer based on the "convenience of parties and witnesses and [the promotion of] the just and efficient conduct of such actions."⁶

The standard is similar in solo antitrust cases when a court considers a motion to transfer venue. Under Section 1404 of the Judicial Code, the district court can transfer a case to another venue "[f]or the convenience of the parties and witnesses" and "in the interest of justice."⁷ District court judges have wide discretion on such motions, and according to the Supreme Court, the statute permits a "flexible and individualized analysis."⁸

While assessing the convenience of witnesses is relatively straightforward,⁹ the "interests of justice" is not so concrete. In evaluating which venue best serves the interest of justice, courts weigh a host of factors, including (in no particular order):

[Page 114]

• the plaintiff's choice of forum;¹⁰
• the ability to compel the attendance of unwilling nonparty witnesses;
• the ease of access to sources of proof;
• the respective parties' contacts with the forum;
• the relationship of each community to the controversy;
• relative court congestion;
• the location where relevant agreements were negotiated and executed;
• applicable forum selection clauses;
• the differences in the costs of litigation in the two forums;
• the unfairness of burdening citizens in an unrelated forum with jury duty;
• the interest in avoiding litigation in a forum where there is a question over whether personal jurisdiction exists; and
• familiarity with the applicable law.¹¹

This last factor leads some parties in antitrust cases to argue that the interests of justice favors having the case remain with (or go to) districts with significant antitrust experience. For example, in Le, et al. v. Zuffa LLC, an antitrust challenge to the Ultimate Fighting Championship (UFC) organization, the defense moved to transfer venue from the Northern District of California, where the case was originally filed, to the District of Nevada.¹² In opposing the motion, the plaintiff contrasted the 476 civil antitrust cases that had been filed in the Northern District of California over the last several years with just 19 that had been filed in Nevada.¹³ The plaintiffs argued that the disparity gave California a distinct edge in terms of which court could most efficiently manage the complex action.¹⁴

[Page 115]

A group of plaintiffs in the contact lens multidistrict litigation made a similar argument. They pointed out the depth of experience of the Northern District of California judges in dealing with coordinated class action antitrust suits, citing a series of cases the court has handled, including In re Cathode Ray Tube (CRT) Antitrust Litigation (MDL No. 1917), In re TFT-LCD (Flat Panel) Antitrust Litigation (MDL No. 1827), In re Optical Disk Drive Prods. Antitrust Litigation (MDL No. 2143), and In re Lithium Ion Batteries Antitrust Litigation (MDL No. 2420).¹⁵

In both the UFC case and the contact lens case, the plaintiffs' efforts to keep the cases in the Northern District of California were...