A Primer on Retroactive Application of Statutory Amendments
As a general principle, “legislation usually applies only prospectively.” Opati v. Republic of Sudan, 140 S. Ct. 1601, 1608 (2020). Courts often begin analyzing “with an assumption that Congress means its legislation to respect the principle of prospectivity and apply only to future conduct—and that, if and when Congress wishes to test its power to legislate retrospectively, it must say so ‘clear[ly].’” Id. (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994)). That approach ensures that individuals “‘have an opportunity to know what the law is’ before they act,” with limited second-guessing thereafter. Id. at 1607 (quoting Landgraf, 511 U.S. at 265). Nevertheless, for civil cases, courts apply a statute retroactively if Congress clearly provides for such retroactive application. See id. at 1608–9.
If a statute contains no clear or express direction to apply it retroactively, then the court must analyze “whether the statute would have retroactive effect, i.e., whether it would impair rights a party possessed when” it was acting and whether it would “increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” In re Google Dig. Advert. Antitrust Litig., MDL No. 3010, 2023 WL 3828612, at *2 (J.P.M.L. June 5, 2023) (quoting Landgraf, 511 U.S. at 280). If the provision operates retroactively in one of those ways, courts presume “it does not govern absent clear congressional intent favoring such a result.” Id. (quoting Landgraf, 511 U.S. at 280). However, Landgraf stated that “deciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.” 511 U.S. at 268.
Landgraf indicated that procedural rules often apply without retroactivity concerns in suits that arose before the procedure’s enactment, such as venue provisions. Because procedural rules regulate “secondary rather than primary conduct,” the application of a new procedure to an existing suit does not necessarily make the application “retroactive.” 511 U.S. at 275. For example, Landgraf characterized an attorney fee award in Bradley v. School Board of Richmond, 416 U.S. 696 (1974), which was granted pursuant to a law passed years after the litigation was initiated, as “collateral to the main cause of action” and “separable from the cause of action to be proved at trial.” Landgraf, 511 U.S. at 277.
The MDL Act Amendment
The MDL Act and its federal enforcement case exemption.
As noted, the MDL Act authorizes the Judicial Panel on Multidistrict Litigation to combine civil antitrust cases into one MDL to coordinate the pretrial proceedings in those cases. When the MDL Act was passed, the Department of Justice requested an exemption, arguing the government brought its enforcement suits to protect the public generally from competitive injuries, differing from private suits’ objective to recover damages for injuries already sustained. H.R. Rep. No. 90-1130 at 1905. Congress obliged and exempted “any action in which the United States is a complainant arising under the antitrust laws.” 28 U.S.C. § 1407(g). The subsection defined several federal sections as the “antitrust laws” in order to effectuate and narrow the exemption.
The panel subsequently adhered to this antitrust-only exemption and resisted efforts aimed at expanding its scope. For example, when the Securities and Exchange Commission asked to keep its injunctive action out of an MDL, the panel denied the commission’s request. The panel stated the MDL Act drafters “were aware that the impact of coordinated pretrial proceedings” would extend beyond antitrust cases to other kinds of actions but created only the section 1407(g) exemption for federal antitrust actions. The panel stated it would violate “the basic statutory purposes for us now to read such an exception into the statute.” In re Nat’l Student Mktg. Litig., 368 F. Supp. 1311, 1316 (J.P.M.L. 1973) (MDL No. 105); see also In re Uranium Indus. Antitrust Litig., 458 F. Supp. 1223 (J.P.M.L. 1978) (Tennessee Valley Authority’s antitrust claims not exempt).
The Merger Filing Fee Modernization Act and the new state attorneys general exemption.
Congress amended the MDL Act in December 2022 through the passage of the Merger Filing Fee Modernization Act (MFFMA). The MFFMA amendment added an exemption from MDL consolidation for federal antitrust claims brought by state attorneys general. After the amendment, section 1407(g) now reads, “Nothing in this section shall apply to any action in which the United States or a State is a complainant arising under the antitrust laws.”
Retroactive Application of the New MDL Exemption
One branch of the wide-ranging recent antitrust litigation against Google concerns “Google’s alleged monopolization and suppression of competition in online display advertising—essentially the marketplace for the placement of digital display ads on websites and mobile apps.” In re Dig. Advert. Antitrust Litig., 555 F. Supp. 3d 1372, 1373 (J.P.M.L. Aug. 10, 2021) (MDL No. 3010). In 2021, Google moved to centralize over 20 lawsuits with such claims, including states’ attorney general actions. Texas and its co-plaintiff states opposed centralization of their action, arguing in part that a bill was pending before Congress to exempt such actions from the MDL Act. The panel declined to anticipate that legislation, stating, “we must apply the law currently in effect, without speculating about what future legislation might be passed.” Id. at 1379. The panel transferred the new MDL No. 3010, including the states’ case, to the Southern District of New York.
In June 2023, after Congress passed the MFFMA, Texas and the other states moved for a remand based on their new exemption from the MDL Act. In re Google Dig. Advert. Antitrust Litig., MDL No. 3010, 2023 WL 3828612 (J.P.M.L. June 5, 2023). Google opposed the motion, arguing that the venue amendment should not apply retroactively. The panel granted the states’ motion, holding “that the recent amendment to Section 1407(g) applies to pending state antitrust enforcement actions and, absent a state’s waiver of its venue rights, the Panel must grant the motion for remand.” Id. at *2.
The panel relied primarily on Landgraf in assessing the retroactive application of the MDL Act amendment. The panel noted that, absent a statutory command expressly prescribing “the statute’s proper reach,” the court “must determine whether the new statute would have a retroactive effect, i.e., whether it would impair rights a party possessed when [it] acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” In re Google Dig. Advert. Antitrust Litig., MDL No. 3010, 2023 WL 3828612, at *2 (quoting Landgraf, 511 U.S. at 280). The panel conducted a two-step analysis to make the determination, asking, “(1) does the statute contain an express command as to its retroactive application,” and if not, (2) would applying the amendment to the case “have a genuinely ‘retroactive effect[.]’” Id.
The panel first found that the MDL Act amendment lacked an express provision about retroactivity, as nothing in the new language “sets forth the amendment’s temporal reach.” Turning to the second step, the panel noted that procedural changes may often properly apply to pending cases because they “regulate secondary rather than primary conduct.” Id. (citing Landgraf, 511 U.S. at 275). The panel found the MDL exemption amendment was “plainly a procedural rule.” A venue change did not impair “rights that a party had when it acted, increasing a party’s liability for past conduct, or imposing new duties.” Therefore, the amendment applied to the states’ case. Id.
The panel concluded that the case brought by state attorneys general against Google should be immediately remanded to its transferor court. It stated that although the MFFMA’s amendment could be construed as removing the panel’s remand authority, such an interpretation “would yield[ ] an absurd result that is the exact opposite of the statute’s purpose.” Further, the panel stated it had inherent authority to “grant a remedy for actions transferred to an MDL that no longer belong there.” Id. at *3. Accordingly, the panel remanded State of Texas v. Google LLC to the transferor district, the Eastern District of Texas.
Conclusion
State and federal enforcement actions already have some similarities, notably their ability to conduct pre-suit discovery through civil investigative demands and grand jury proceedings. Based on Supreme Court precedent concerning retroactive application of statutory amendments, the panel concluded that retroactive application of the exemption of antitrust actions by state attorneys general did not cause the kinds of harms that forbid retroactive application of a statute. The panel has continued to apply the exemption retroactively to sprawling antitrust actions, most recently to three actions filed by state attorneys general that were originally part of the ongoing In re Generic Pharmaceuticals Pricing Antitrust Litigation, but for which the panel ordered remand to the District of Connecticut in January 2024.
The new remand procedure is sure to introduce new challenges to parties that will now have to litigate or coordinate civil antitrust claims in two separate jurisdictions simultaneously, but it also accelerates the movement toward increasing the symmetry between state and federal enforcement actions.