D.C. is testing its Big Tech antitrust campaign far from D.C.

The Biden administration is testing its antitrust push far from Washington as it seeks to unwind the dominance of Big Tech.

No longer is the nation’s capital the go-to trial venue of choice for the Justice Department and Federal Trade Commission as they file competition challenges against the biggest names in Silicon Valley.

Instead, it’s New Jersey where the government chose to sue Apple (AAPL). Or California, where it challenged Microsoft (MSFT). Or the state of Washington, where it confronted Amazon (AMZN). Or Virginia, where it filed a second antitrust suit against Google (GOOG, GOOGL).

"They’re clearly filing these tech cases in different jurisdictions where the law is less developed," said Douglas Ross, a professor of antitrust at the University of Washington School of Law. "And they're doing it for a reason."

A variety of strategies could explain the multi-jurisdictional approach, according to antitrust lawyers.

Prosecutors could be targeting appeals courts with case law more favorable to their legal theories, since all of the district courts selected by Biden’s FTC and DOJ report to different courts of appeals.

The government could also be weighing the speed of a court in handling litigation and the convenience to anticipated witnesses, said Juan Arteaga, a partner with Crowell & Moring’s antitrust litigation division.

It’s also possible, he added, that government officials may want to showcase vigorous anticompetitive enforcement to the rest of the country.

"I think the current leadership team and the DOJ antitrust division have really made it a point to try to take antitrust enforcement out of the D.C. bubble," Arteaga said.

Ross is more skeptical of a strategy that seeks out jurisdictions where judges have less antitrust experience and fewer controlling antitrust cases are on the books.

Outside of D.C. and a few other popular antitrust districts, Ross said, "antitrust is like a hen's tooth — there are very few cases, and most average federal district judges have heard zero antitrust cases."

D.C.'s dominance

D.C. has long been the chosen spot for many of the most prominent antitrust cases in US history, including landmark cases against AT&T (T) and Microsoft in the 1970s, 1980s, and 1990s.

Its dominance extends back even further in time.

Since 1899, the earliest year records are available, the DOJ filed 391 antitrust cases in the district.

That is nearly double the next closest counts of 222 filings in the Northern District of California and 220 in the Southern District of New York.

It held its dominance for most of the last decade as well. D.C. was home to the most new cases or tied for that title from 2015 through 2022.

That changed last year. In 2023, the government filed more antitrust cases in several places outside D.C., including states like Michigan and Oklahoma.

When factoring in private antitrust suits, the district with the most combined competition suits last year — totaling 42 — was the US District Court for the Northern District of California. Federal district courts in New Jersey, Illinois, and New York followed.

The government's shift away from D.C. is happening at a time when there are rising concerns within the legal community about judge shopping in hopes of sympathetic rulings and state and federal governments intervening in private antitrust litigation.

Bills to disrupt judicial power in single-judge districts have been introduced in the Senate, and the Judicial Conference recommended changes to the case assignment process in March.

Changing course

The Biden White House started its campaign against Big Tech close to home, in the D.C. District Court. That's where the FTC, under its Biden-nominated Chair Lina Khan, refiled an action against Facebook in 2021.

That case, first brought during former President Trump’s administration, alleged that the social media giant illegally blocked competition through its acquisitions of Instagram and WhatsApp.

It also took over another case filed in D.C. by the prior administration, against Google, challenging the company’s online search dominance. A ruling from the judge in that case is expected soon.

Then prosecutors changed course and veered away from D.C.

In December 2022, the FTC chose the US District Court for the Northern District of California to challenge Microsoft’s acquisition of video gaming giant Activision Blizzard. The effort failed, and the regulators appealed the matter to the Ninth Circuit.

A month later, in January 2023, the DOJ, joined by eight state attorneys general, went after Google in a second antitrust case, this time in the US District Court for the Eastern District of Virginia. Prosecutors alleged Google abused its monopoly in the digital advertising technology market.

In September of 2023, the FTC and 17 states sued Amazon in the US District Court for the Western District of Washington. The suit accused the retail giant of illegally monopolizing online marketplace services.

Then this year in March, the DOJ and a group of state attorneys general sued Apple in the US District Court in New Jersey. The prosecutors claimed Apple illegally abused its dominance in the smartphone market.

'Trying to avoid the D.C. Circuit'

New Jersey is a less logical place for the government to challenge Apple when compared to some of the other cases outside D.C.

Amazon was targeted in the Washington district, where the company is headquartered, and Microsoft was sued in the Bay Area, where it has a significant physical footprint.

But Apple isn't domiciled in New Jersey nor does it have dominant operations there.

One factor that may help explain the government's choice is that appeals from New Jersey's federal trial courts are heard by the Third Circuit Court of Appeals, which in recent years has handed down decisions that could favor the government's claims against the iPhone maker.

"I think I think that the DOJ concluded that the case law was much more favorable for the Third Circuit as opposed to the Ninth Circuit," Arteaga said.

As for the case against Google in Virginia, the DOJ may be looking for a quick turn. The Eastern District court has earned its "rocket docket" nickname for the speed with which it handles litigation.

"I think there probably is an element of trying to avoid the D.C. Circuit," Ross said."Whether that's going to pay off for them or hurt them, I don't know."

The tactic, he said, could lead to more chaos in the law and increase the chances of getting one of the cases heard by the Supreme Court.

Keith Harrison, also a partner in Crowell & Moring’s litigation practice, said bringing the cases against the country's most dominant and consumer-facing companies could prove valuable for the administration, win or lose, as it tries to communicate its agenda to a broader population.

"This [Apple] case is going to be a big case, wherever it's brought," Harrison said. "But in New Jersey, it’s going to be the biggest case in that courthouse, and in local news on a regular basis."

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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