ABA Journal

"In September 2022, California Attorney General Rob Bonta sued Amazon, alleging the com- pany’s pricing policy for third- party merchants undermines competition and raises prices for consumers elsewhere.

The suit, filed in state superior court, claims that in order to sell through Amazon, everyday sellers must sign agreements that they won’t charge lower prices on competing e-commerce sites such as Walmart’s. If they violate the contracts, the sellers face less prominent placement and even risk getting booted from selling new wares on Amazon, according to the suit.

“We won’t allow Amazon to bend the market to its will at the expense of California consumers, small-business owners, and a fair and competitive economy,” Bonta said in a statement. Amazon has argued its policy simply ensures consumers pay less on its own site.

As Big Tech companies like Amazon and Google have come under scrutiny in recent years for their economic power, antitrust challenges are no longer being driven just by players in the federal government. As in California, the states are now coming for the companies too.

States are armed with a new power that means companies in tech and beyond will have to spend more time looking over their shoulders, legal observers say. Congress slipped a measure known as the State Antitrust Enforcement Venue Act into an omnibus bill that became law at the end of 2022. The measure prevents antitrust lawsuits brought by state attorneys general from being consolidated against their will with complaints from other private antitrust plaintiffs for pretrial proceedings—a power federal enforcers already had.

Such consolidations usually mean states’ cases get transferred away from courts of their choosing. And now that states are able to go it alone, they won’t have to hash out tactics and compare schedules with private plaintiffs who haven’t had the benefit of subpoenas to dig around as deeply as states can before filing complaints. State attorneys general, who usually hope to get quick redress, also may know the leanings and interests of “their” federal district judges better than tech companies’ corporate counsels.

“States are known to hunt in packs, but they are increasingly breaking off the pack to bring their own cases,” James Lloyd said at the ABA’s 2023 Antitrust Spring Meeting in March. Lloyd is chief of the antitrust division at the Texas attorney general’s office."

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