[House Report 117-494]
[From the U.S. Government Publishing Office]


117th Congress    }                                      {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                      {     117-494

======================================================================



 
             STATE ANTITRUST ENFORCEMENT VENUE ACT OF 2022

                                _______
                                

 September 26, 2022.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3460]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3460) to amend title 28 of the United States Code to 
prevent the transfer of actions arising under the antitrust 
laws in which a State is a complainant, having considered the 
same, reports favorably thereon with amendments and recommends 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     9
Committee Estimate of Budgetary Effects..........................     9
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     9
Duplication of Federal Programs..................................    10
Performance Goals and Objectives.................................    10
Advisory on Earmarks.............................................    10
Section-by-Section Analysis......................................    10
Changes in Existing Law Made by the Bill, as Reported............    11

    The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``State Antitrust Enforcement Venue Act 
of 2022''.

SEC. 2. AMENDMENTS.

  Section 1407 of title 28 of the United States Code is amended--
          (1) in subsection (g) by inserting ``or a State'' after 
        ``United States'', and
          (2) by striking subsection (h).

SEC. 3. EFFECTIVE DATE.

  This Act and the amendments made by this Act, shall take effect on 
June 1, 2021.

    Amend the title so as to read:
    A bill to promote competition by preventing the transfer of 
actions arising under the antitrust laws in which a State is a 
complainant.

                          Purpose and Summary

    H.R. 3460, the ``State Antitrust Enforcement Venue Act of 
2022,'' was introduced on May 21, 2021 by Representatives Ken 
Buck (R-CO), Burgess Owens (R-UT), David Cicilline (D-RI), and 
Dan Bishop (R-NC). H.R. 3460 updates the transfer rules for 
multidistrict antitrust litigation when a state is a 
complainant. The legislation exempts antitrust litigation 
initiated in federal district court by a state from being 
transferred to another venue or consolidated with other 
antitrust claims by the Judicial Panel on Multidistrict 
Litigation (JPML). H.R. 3460 ensures that states are afforded 
deference when selecting an appropriate venue to enforce the 
antitrust laws and protect the public from antitrust injury. 
The bill also eliminates delays, inefficiencies, and associated 
higher costs that states face enforcing the antitrust laws 
under the current JPML process.

                Background and Need for the Legislation

    The JPML determines whether civil cases involving common 
questions of fact that are pending in multiple federal 
districts should be transferred to a single federal district 
court for coordinated or consolidated pretrial proceedings.\1\ 
If the panel concludes such coordination or consolidation is 
warranted, the JPML also selects the court and judge to conduct 
these proceedings.\2\ Under current law, the JPML may not 
transfer most antitrust enforcement actions brought by the 
United States from one district court to another venue.\3\ Due 
to this exemption, the United States is entitled to litigate 
most antitrust actions in the federal district court where it 
files its claim. Additionally, at least one court has ruled 
that it is contrary to public policy to consolidate an 
antitrust enforcement action brought by the United States with 
tag-along litigation brought by private plaintiffs.\4\ As a 
result, federal government enforcement actions can often 
proceed more quickly than those brought by states or private 
plaintiffs.
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    \1\28 U.S.C. Sec. 1407(a).
    \2\Id. Sec. 1407(b).
    \3\Id. Sec. 1407(g).
    \4\See United States v. Dentsply Int'l, Inc., 190 F.R.D. 140 (D. 
Del. 1999) (denying motion to consolidate); see generally Sam Fox Pub. 
Co. v. United States, 366 U.S. 683, 693 (1961) (noting ``the 
unquestionably sound policy of not permitting private antitrust 
plaintiffs to press their claims against alleged violators in the same 
suit as the Government'').
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    Unlike most antitrust claims brought by the United States, 
antitrust claims brought by a state alleging a violation of the 
federal antitrust laws are not exempt from consolidation or 
transfer under the JPML process.\5\ The resolution of a state's 
antitrust claim thus may be delayed because it is redirected to 
another venue, or the state may be required to coordinate or 
consolidate its case with slower-moving private antitrust 
litigation. As a result, current law undermines the ability of 
a state to litigate cases in federal court in its home state, 
even when that court is an appropriate venue and has clear 
jurisdiction.
---------------------------------------------------------------------------
    \5\28 U.S.C. Sec. 1407(h).
---------------------------------------------------------------------------
    H.R. 3460 exempts state claims brought under the federal 
antitrust laws from transfer or consolidation by the JPML. This 
change ensures that a state is afforded deference when 
selecting the appropriate venue to file its antitrust claim and 
eliminates the delay, inefficiency, and associated higher cost 
that a state may encounter under existing law. But this 
legislation does not impede antitrust defendants from seeking 
to transfer a case to a more convenient forum under the federal 
change-of-venue statute.\6\
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    \6\Id. Sec. 1404.
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    Congress exempted most antitrust actions brought by the 
United States from being subject to transfer by the JPML to 
avoid litigation delays. In 1968, Deputy Attorney General 
Ramsey Clark explained that, if antitrust enforcement actions 
by the United States were subject to complex, multidistrict 
proceedings, there would likely be significant delay in 
enforcing the antitrust laws.\7\ The legislative history shows 
that Members of Congress agreed, declining to subject most 
antitrust cases brought by the United States to JPML 
consolidation because ``[g]overnment suits would then almost 
certainly be delayed.''\8\ Delay is particularly undesirable in 
antitrust cases brought by the government because, as Deputy 
Attorney General Clark noted, ``the purpose of the governmental 
[antitrust] suit differs from that of a private suit; the 
Government seeks to protect the public from competitive injury, 
while private parties are primarily interested in recovering 
damages for injuries already suffered.''\9\
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    \7\H.R. Rep. No. 90-1130, at 7 (1968).
    \8\Id. at 5.
    \9\Id. at 8.
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    Delays in antitrust enforcement are also undesirable when 
the antitrust laws are enforced by a state. Like federal 
antitrust claims, state enforcement actions aim to protect 
residents of the state from competitive injury. In May 2021, 45 
state attorneys general wrote to antitrust leaders in Congress 
explaining that states bring antitrust enforcement actions ``in 
the public interest to protect consumers and the competitive 
process in our states.''\10\ Additionally, like federal 
antitrust enforcers and unlike private litigants, state 
attorneys general have powerful tools to investigate antitrust 
violations, rendering much of the pretrial discovery 
proceedings in private actions superfluous in actions brought 
by a state. Exempting state antitrust actions from the JPML 
will eliminate unnecessary inefficiencies and delays and enable 
more timely and cost-efficient resolutions of state antitrust 
claims while also ensuring that a state can litigate claims in 
an appropriate venue of its choice.
---------------------------------------------------------------------------
    \10\Letter from Nat'l Ass'n of State Att'ys Gen. to Hon. Amy 
Klobuchar, Chair, Subcomm. on Competition Pol'y, Antitrust, & Consumer 
Rts. of the S. Comm. on the Judiciary; Hon. Mike Lee, Ranking Member, 
Subcomm. on Competition Pol'y, Antitrust, & Consumer Rts. of the S. 
Comm. on the Judiciary; Hon. David N. Cicilline, Chair, Subcomm. on 
Antitrust, Com., & Admin. L. of the H. Comm. on the Judiciary, & Hon. 
Ken Buck, Ranking Member, Subcomm. on Antitrust, Com., & Admin. L. of 
the H. Comm. on the Judiciary 2 (May 10, 2021) [hereinafter NAAG 
Letter], https://docs.house.gov/meetings/JU/JU00/20210623/112818/HMKP-
117-JU00-20210623-SD015.pdf.
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    Reducing the length of antitrust litigation, including by 
eliminating unnecessary delays that are the result of the JPML 
process, may strengthen enforcement of the antitrust laws. 
Litigation costs increase as litigation drags on. John Thorne 
of Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. explained 
in testimony to the Subcommittee on Antitrust, Commercial, and 
Administrative Law (the Subcommittee) that ``cost and time'' 
are the ``biggest obstacles to [antitrust] enforcement.''\11\ 
Nebraska Attorney General Douglas Peterson testified to the 
Subcommittee that the resources to support expensive antitrust 
litigation ``are readily available for large corporate 
defendants but are scarce for state and federal 
enforcers.''\12\ Mr. Thorne underscored that, when enforcement 
actions are delayed, competition and consumers suffer because 
``[e]very extra year it takes to get to trial is an extra year 
of monopoly.''\13\ The National Association of Attorneys 
General has emphasized that antitrust enforcement is costly, 
explaining that ``[a]dditional funding of antitrust enforcement 
is required at both the federal and state levels. As our 
nation's economy has grown, so too has the need to staff and 
finance a greater number of antitrust enforcement actions that 
are fundamentally more complex and resource-intensive than in 
the past.''\14\ Reducing delays and inefficiencies in state 
antitrust enforcement is likely to lower the costs of 
enforcement, enabling states to investigate and bring more 
cases to protect their residents from anticompetitive conduct 
and monopolistic practices.
---------------------------------------------------------------------------
    \11\Reviving Competition, Part 1: Proposals to Address Gatekeeper 
Power and Lower Barriers to Entry Online: Hearing Before the Subcomm. 
on Antitrust, Com., & Admin. L. of the H. Comm. on the Judiciary, 117th 
Cong. 58 (2021) [hereinafter Lowering Barriers to Entry Hearing], 
https://www.govinfo.gov/content/pkg/CHRG-117hhrg47295/pdf/CHRG-
117hhrg47295.pdf (statement of John Thorne, Partner, Kellogg, Hansen, 
Todd, Figel & Frederick P.L.L.C., at 1).
    \12\Reviving Competition, Part 3: Strengthening the Laws to Address 
Monopoly Power: Hearing Before the Subcomm. on Antitrust, Com., & 
Admin. L. of the H. Comm. on the Judiciary, 117th Cong. 69 (2021) 
[hereinafter Strengthening the Antitrust Laws Hearing], https://
www.govinfo.gov/content/pkg/CHRG-117hhrg47296/pdf/CHRG-117hhrg47296.pdf 
(statement of Hon. Douglas J. Peterson, Att'y Gen., Nebraska, at 1).
    \13\Lower Barriers to Entry Hearing at 60 (statement of John 
Thorne, Partner, Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C., at 
3).
    \14\NAAG Letter at 2.
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    H.R. 3460 addresses these problems by exempting federal 
antitrust claims brought by a state from the JPML. The 
legislation ensures that a state receives deference when it 
selects an appropriate venue for an antitrust claim. It also 
eliminates unnecessary delay, inefficiency, and expenses that a 
state may encounter under existing law.

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, 
the following hearings were used to develop H.R. 3460:
    The Subcommittee on Antitrust, Commercial, and 
Administrative Law held a hearing entitled, ``Reviving 
Competition, Part 1: Proposals to Address Gatekeeper Power and 
Lower Barriers to Entry Online'' on February 25, 2021, to 
consider proposals to strengthen antitrust enforcement in 
digital markets and to explore potential legislative reforms to 
address these concerns.\15\ The Majority witnesses at the 
hearing were: Eric Gundersen, Chief Executive Officer, Mapbox; 
Morgan Harper, Senior Advisor, American Economic Liberties 
Project; Hal Singer, Managing Director, Econ One; and Charlotte 
Slaiman, Competition Policy Director, Public Knowledge. The 
Minority witnesses at the hearing were: John Thorne, Partner, 
Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.; and Tad 
Lipsky, Director, Competition Advocacy Program, Global 
Antitrust Institute, George Mason University.
---------------------------------------------------------------------------
    \15\Lowering Barriers to Entry Hearing.
---------------------------------------------------------------------------
    The Subcommittee on Antitrust, Commercial, and 
Administrative Law held a legislative hearing entitled, 
``Reviving Competition, Part 3: Strengthening the Laws to 
Address Monopoly Power'' on March 18, 2021, to consider 
proposals to strengthen the antitrust laws, including removing 
barriers to state antitrust enforcement.\16\ The Majority 
witnesses at the hearing were: the Honorable Rebecca Kelly 
Slaughter, Acting Chairwoman, Federal Trade Commission; Mike 
Walker, Chief Economic Advisor, United Kingdom Competition and 
Markets Authority; the Honorable Philip J. Weiser, Attorney 
General, Colorado; and the Honorable Diane P. Wood, Judge, U.S. 
Court of Appeals for the Seventh Circuit. The Minority 
witnesses at the hearing were: the Honorable Doug Peterson, 
Attorney General, Nebraska; and the Honorable Noah Phillips, 
Commissioner, Federal Trade Commission.
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    \16\Strengthening the Antitrust Laws Hearing.
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                        Committee Consideration

    On June 23, 2021, the Committee met in open session and 
ordered the bill, H.R. 3460, favorably reported, with an 
amendment, by a rollcall vote of 34 to 7, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3460:
    1. An amendment offered by Rep. Bishop to limit the type of 
state antitrust actions falling within the exemption from JPML 
consolidation was defeated by a rollcall vote of 11 to 31. The 
vote was as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    2. A motion to order H.R. 3460 favorably reported to the 
House, as amended, passed by a rollcall vote of 34 to 7. The 
vote was as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of House rule X, are incorporated in the descriptive portions 
of this report.

                Committee Estimate of Budgetary Effects

    Pursuant to clause 3(d)(1) of House rule XIII, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(2) of House rule XIII and section 
308(a) of the Congressional Budget Act of 1974, and pursuant to 
clause (3)(c)(3) of House rule XIII and section 402 of the 
Congressional Budget Act of 1974, the Committee sets forth, 
with respect to the bill, H.R. 3460, the following analysis and 
estimate prepared by the Director of the Congressional Budget 
Office:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Under current law, antitrust suits that are filed in more 
than one federal court district may be transferred and 
consolidated in a single venue at the request of a litigant or 
the initiative of judiciary officials. Antitrust suits brought 
by federal law enforcement agencies are exempt.
    H.R. 3460 would exempt from transfer and consolidation 
antitrust cases brought by state attorneys general, allowing 
those cases to remain in the court district in which they were 
filed. Over the 2016-2020 period, state attorneys general 
brought, on average, 10 antitrust suits per year in federal 
courts; few, if any, were consolidated.
    Using information from the Administrative Office of the 
U.S. Courts (AOUSC) and the Department of Justice, CBO 
anticipates that although some cases affected by the bill might 
be resolved more quickly if they remained in their original 
venues, in many cases, the total workload for judiciary staff 
members would increase if related suits were not consolidated. 
Using information from the AOUSC, CBO estimates that, on 
balance, administrative costs for the judiciary would increase 
by a total of $1 million over the 2022-2026 period. Such 
spending would be subject to the availability of appropriated 
funds.
    CBO's estimate is subject to significant uncertainty 
concerning the number of antitrust cases that state attorneys 
general would file each year, how many cases would be 
consolidated in the absence of the legislation, and how staff 
workload would be affected for each case.
    On February 15, 2022, CBO transmitted a cost estimate for 
S. 1787, the State Antitrust Enforcement Venue Act of 2021, as 
reported by Senate Committee on the Judiciary on February 3, 
2022. The two pieces of legislation are similar, and the 
estimated budgetary effects are the same for both bills.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was reviewed by Leo Lex, Deputy Director of Budget 
Analysis.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 3460 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that, pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 3460 would enable a state to bring and 
litigate claims under the federal antitrust laws in an 
appropriate and convenient venue of its choosing, without the 
prospect of transfer and consolidation under the multi-district 
litigation statute. The bill would reduce unnecessary delays, 
costs, and inefficiencies that result when state antitrust 
actions are transferred to another venue or consolidated with 
private antitrust claims by the JPML. It would ensure a state 
can protect its residents from competitive injury by vigorously 
enforcing the antitrust laws to stop and deter anticompetitive 
conduct and illegal merger activity, thereby protecting 
consumers and the public; preventing and unwinding excessive 
concentrations of economic power; and promoting choice and 
competition, innovation, and investment throughout the economy.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 3460 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clause 9(d), 
9(e), or 9(f) of House rule XXI.

                      Section-by-Section Analysis

    Sec. 1. Short Title. Section 1 sets forth the short title 
of the bill as the ``State Antitrust Enforcement Venue Act of 
2022''.
    Sec. 2. Amendments. Section 2 amends section 1407 of title 
28 of the United States Code.
    Paragraph (1) exempts antitrust actions brought by a state 
from being transferred for coordinated or consolidated pretrial 
proceedings by the judicial panel on multidistrict litigation.
    Paragraph (2) eliminates the ability of the judicial panel 
on multi-district litigation to consolidate and transfer 
actions brought under the Clayton Act by the attorney general 
of a state on behalf of persons residing in the state.
    Sec. 3. Effective Date. Section 3 sets June 1, 2021, as the 
effective date for the Act and amendments made by the Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE




           *       *       *       *       *       *       *
PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


CHAPTER 87--DISTRICT COURTS; VENUE

           *       *       *       *       *       *       *



Sec. 1407. Multidistrict litigation

  (a) When civil actions involving one or more common questions 
of fact are pending in different districts, such actions may be 
transferred to any district for coordinated or consolidated 
pretrial proceedings. Such transfers shall be made by the 
judicial panel on multidistrict litigation authorized by this 
section upon its determination that transfers for such 
proceedings will be for the convenience of parties and 
witnesses and will promote the just and efficient conduct of 
such actions. Each action so transferred shall be remanded by 
the panel at or before the conclusion of such pretrial 
proceedings to the district from which it was transferred 
unless it shall have been previously terminated: Provided, 
however, That the panel may separate any claim, cross-claim, 
counter-claim, or third-party claim and remand any of such 
claims before the remainder of the action is remanded.
  (b) Such coordinated or consolidated pretrial proceedings 
shall be conducted by a judge or judges to whom such actions 
are assigned by the judicial panel on multidistrict litigation. 
For this purpose, upon request of the panel, a circuit judge or 
a district judge may be designated and assigned temporarily for 
service in the transferee district by the Chief Justice of the 
United States or the chief judge of the circuit, as may be 
required, in accordance with the provisions of chapter 13 of 
this title. With the consent of the transferee district court, 
such actions may be assigned by the panel to a judge or judges 
of such district. The judge or judges to whom such actions are 
assigned, the members of the judicial panel on multidistrict 
litigation, and other circuit and district judges designated 
when needed by the panel may exercise the powers of a district 
judge in any district for the purpose of conducting pretrial 
depositions in such coordinated or consolidated pretrial 
proceedings.
  (c) Proceedings for the transfer of an action under this 
section may be initiated by--
          (i) the judicial panel on multidistrict litigation 
        upon its own initiative, or
          (ii) motion filed with the panel by a party in any 
        action in which transfer for coordinated or 
        consolidated pretrial proceedings under this section 
        may be appropriate. A copy of such motion shall be 
        filed in the district court in which the moving party's 
        action is pending.
The panel shall give notice to the parties in all actions in 
which transfers for coordinated or consolidated pretrial 
proceedings are contemplated, and such notice shall specify the 
time and place of any hearing to determine whether such 
transfer shall be made. Orders of the panel to set a hearing 
and other orders of the panel issued prior to the order either 
directing or denying transfer shall be filed in the office of 
the clerk of the district court in which a transfer hearing is 
to be or has been held. The panel's order of transfer shall be 
based upon a record of such hearing at which material evidence 
may be offered by any party to an action pending in any 
district that would be affected by the proceedings under this 
section, and shall be supported by findings of fact and 
conclusions of law based upon such record. Orders of transfer 
and such other orders as the panel may make thereafter shall be 
filed in the office of the clerk of the district court of the 
transferee district and shall be effective when thus filed. The 
clerk of the transferee district court shall forthwith transmit 
a certified copy of the panel's order to transfer to the clerk 
of the district court from which the action is being 
transferred. An order denying transfer shall be filed in each 
district wherein there is a case pending in which the motion 
for transfer has been made.
  (d) The judicial panel on multidistrict litigation shall 
consist of seven circuit and district judges designated from 
time to time by the Chief Justice of the United States, no two 
of whom shall be from the same circuit. The concurrence of four 
members shall be necessary to any action by the panel.
  (e) No proceedings for review of any order of the panel may 
be permitted except by extraordinary writ pursuant to the 
provisions of title 28, section 1651, United States Code. 
Petitions for an extraordinary writ to review an order of the 
panel to set a transfer hearing and other orders of the panel 
issued prior to the order either directing or denying transfer 
shall be filed only in the court of appeals having jurisdiction 
over the district in which a hearing is to be or has been held. 
Petitions for an extraordinary writ to review an order to 
transfer or orders subsequent to transfer shall be filed only 
in the court of appeals having jurisdiction over the transferee 
district. There shall be no appeal or review of an order of the 
panel denying a motion to transfer for consolidated or 
coordinated proceedings.
  (f) The panel may prescribe rules for the conduct of its 
business not inconsistent with Acts of Congress and the Federal 
Rules of Civil Procedure.
  (g) 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. ``Antitrust laws'' as used herein 
include those acts referred to in the Act of October 15, 1914, 
as amended (38 Stat. 730; 15 U.S.C. 12), and also include the 
Act of June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13, 13a, and 
13b) and the Act of September 26, 1914, as added March 21, 1938 
(52 Stat. 116, 117; 15 U.S.C. 56); but shall not include 
section 4A of the Act of October 15, 1914, as added July 7, 
1955 (69 Stat. 282; 15 U.S.C. 15a).
  [(h) Notwithstanding the provisions of section 1404 or 
subsection (f) of this section, the judicial panel on 
multidistrict litigation may consolidate and transfer with or 
without the consent of the parties, for both pretrial purposes 
and for trial, any action brought under section 4C of the 
Clayton Act.]

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