During a panel discussion hosted by the American Bar Association last week, PA Chamber Vice President and General Counsel Megan Martin voiced the business community’s opposition to House Bill 2012, proposed legislation under consideration in the state legislature which would establish Pennsylvania’s first state antitrust law. Other panelists included Michael Finio of Saul Ewing LLP, Tracy Wertz from the Pennsylvania Attorney General’s Office, and William Devinney of Briglia Hundley.
The PA Chamber’s objections to HB 2012 reflect the concerns of a broad coalition of Pennsylvania employers and 13 other leading industry organizations across the Commonwealth.
“[House Bill] 2012 harms consumers and businesses both large and small, adds uncertainty, and increases the risk of frivolous suits in our Courts of Common Pleas,” the coalition argued in a recent letter to state lawmakers.
Martin criticized the one-sided nature of this complex bill in that it was drafted with extensive input from the Office of Attorney General, but that no hearings were held before the bill was considered in the PA House of Representatives.
Martin contended that no members of the General Assembly, to her knowledge, are experts in antitrust, and it would have been incredibly helpful to the process had legal scholars and experts been afforded the opportunity to weigh-in with their expertise and insight. “As with all things in life, we need a balanced approach” to this process, she said.
Martin also criticized HB 2012 for its vague definitions of antitrust actions, which subject Pennsylvania’s employers to severe criminal penalties, including serving up to four years in prison and fines up to $1 million. She explained that the goal is to welcome businesses to Pennsylvania, not to drive them away. She also criticized the bill’s provisions mandating that the OAG will recover costs and fees if successful in a lawsuit, but that businesses will not be able to recoup those costs if they are successful.
Martin explained how the potential for expensive antitrust litigation, including mandatory treble damages, creates a litigation environment that will result in fewer businesses remaining, locating, or expanding in Pennsylvania. She cited the U.S. Chamber of Commerce’s recent study and conclusion that 89 percent of senior in-house attorneys and executives at large U.S. companies have reported that a state’s litigation environment is likely to impact important business decisions at their companies, such as where to locate or do business.
Martin also criticized the bill’s disproportionate focus on the healthcare industry – which she says would be subjected to “excruciating” regulatory oversight. She further pointed out that these healthcare notification requirements are premature, given that the Uniform Law Commission is still drafting model legislation on state Attorneys General’s access to pre-merger notifications and acquisitions. She urged Pennsylvania to wait for these recommendations before pursuing any changes.
“Healthy market competition benefits consumers through lower prices, higher quality products and services. The economic success of our Commonwealth is built on the fact that the market, not the government, maximizes economic efficiency for the benefit of Pennsylvania’s consumers,” Martin argued.
To learn more about the PA Chamber’s advocacy efforts on this issue, please click here.