Federal enforcers at the FTC and DOJ Antitrust Division often receive much of the focus for antitrust enforcement, but state enforcers play a key role in the antitrust landscape. These state-level efforts not only complement federal enforcement but also address regional market dynamics and consumer protection concerns that federal enforcers often do not address. With the recent push among several states to bolster state antitrust enforcement, it is important for those with an interest in or responsibility for antitrust compliance to have a deeper understanding of state antitrust enforcement mechanisms.
Enforcement of State Antitrust Law
Nearly every state has enacted some form of antitrust law, although the substance and applicability of these laws vary substantially state by state. A large majority of states have laws that track some or nearly all of the language of the federal antitrust statutes—the Sherman Act and the Clayton Act. Some states, such as Pennsylvania, take a less comprehensive approach, relying on laws that target unfair trade practices to protect competition, whereas laws in other states, such as California's Cartwright Act, have extensively developed antitrust-specific laws that in some respects go further than federal antitrust law, such as by expanding the range of prohibited conduct and allowing private plaintiffs broader rights. Although the Cartwright Act does not address unilateral conduct and is therefore narrower than federal law in that respect, proposed amendments that are currently under review aim to expand the Act's scope to target single-firm conduct.
Regardless of the approach employed by each state, state antitrust law is generally not preempted by federal antitrust law, allowing state attorneys general and private plaintiffs to bring claims under both federal and state law. This is so even where state law differs from federal law in substantive ways. For instance, in Leegin Creative Leather Products Inc. v. PSKS Inc., 551 U.S. 877 (2007), the Supreme Court held that under federal antitrust law, minimum resale price maintenance agreements were not per se illegal and should instead be analyzed under the rule of reason. However, in 2009, Maryland adopted legislation amending its state antitrust laws to treat these agreements as per se illegal.1 In another example, the Supreme Court determined in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), that indirect purchasers do not have standing to sue for damages under the federal Clayton Act. Following that decision, a majority of states, through so-called Illinois Brick repealer statutes or case law, allowed indirect purchasers to bring claims pursuant to state antitrust laws.
One area of particular focus for state antitrust enforcement has been the oversight of mergers. Many states have passed laws enhancing scrutiny of mergers, including what are known as "Baby HSR" or "Mini HSR" laws that impose premerger notification and reporting requirements similar to the federal Hart-Scott-Rodino Act, but that tend to apply to smaller transactions valued below the federal notification thresholds. These state-level premerger notification laws allow states to independently challenge transactions—even those that have already received clearance from federal antitrust enforcers. Winston's Baby HSR survey provides buyers and sellers with a resource to quickly assess which states may have premerger notification requirements that impact their transactions.
Enforcement of Federal Antitrust Law
Despite ample state antitrust laws on the books, in some ways state enforcement power still stems from federal antitrust law. Under the federal Clayton Act, those harmed by antitrust violations can seek treble damages (section 4) or injunctive relief (section 16). Notably, individual states may also pursue claims for injunctive relief or monetary damages in two ways. First, states can file suit for a proprietary claim, in which the state is a direct purchaser of goods or services and is directly harmed by purportedly anti-competitive behavior. For example, a state can allege that a state agency or program overpaid for a product due to a price-fixing conspiracy among the product's manufacturers. Second—and more commonly used for state enforcement of federal antitrust law—states that have passed enabling legislation can file suit as "parens patriae," stepping in to protect their citizens from harms caused by conduct violative of federal antitrust law. To bring this type of claim, the state must typically show a "quasi-sovereign" interest apart from the interests of its private citizens, such as protecting the economic well-being of its residents or ensuring fair market conditions in the state. This sprawling authority, described in section 4C of the Clayton Act, significantly expands state antitrust enforcement power beyond the bounds of direct purchaser suits.
The State Antitrust Enforcement Venue Act, signed into law in 2022, offers flexibility for state attorneys general pursuing federal antitrust cases. While federal antitrust claims brought by state attorneys general must be pursued in federal court (as opposed to state court), before the law was passed, these claims could be consolidated into a single district court for pretrial proceedings where multiple cases were being pursued simultaneously, allowing defendants the opportunity to have their case consolidated and heard in a potentially more favorable venue. After the passing of the Act, federal antitrust claims brought by state attorneys general are now exempt from being transferred and consolidated into multidistrict litigation, which has allowed state attorneys general to file cases in venues they perceive to be more convenient or favorable without fear of consolidation and change of venue.
Joining Forces: Collaborative Enforcement
State antitrust enforcers have limited resources devoted to antitrust, relative to the resources available to their federal counterparts. One study found that states collectively employ roughly 150 full-time antitrust lawyers, and that 27 states have fewer than three attorneys working full-time on antitrust enforcement.2 By comparison, the DOJ Antitrust Division alone has approximately 350 attorneys.3 A key tactic utilized by state attorneys general to amplify their limited resources is to combine forces with other antitrust enforcers. Often, states will coordinate with their counterparts in other states to pursue joint enforcement initiatives based on their shared priorities and values. One prominent example of these collective efforts is the National Association of Attorneys General (NAAG) and its Multistate Task Force, which provides a platform for state attorneys general to collaborate on policy development and coordinate multistate antitrust litigation efforts. For larger cases, states often link vertically with federal enforcers (such as the FTC or the DOJ Antitrust Division) or federal agencies (such as the USDA) to pursue collaborative antitrust investigations and lawsuits. In such cases, state attorneys general have also amplified their enforcement power by bringing state claims in federal court as a complement to the claims brought by federal enforcers. Through these initiatives to collaborate with other states and federal antitrust enforcers, individual states can maintain an outsized impact on antitrust enforcement, even with limited resources.
Takeaways
State antitrust enforcers are key contributors to the antitrust landscape in the United States. Their efforts, through state-specific laws or federal antitrust statutes, focus on addressing perceived regional concerns in antitrust. With limited resources compared to their federal counterparts, state antitrust enforcers look for ways to cooperate with other states and federal agencies to play a larger role in enforcement. As states look to reinforce their antitrust capabilities, it is increasingly important to factor in state antitrust enforcement when assessing compliance priorities.
Footnotes
1. Md. Com. Law Code Ann. § 11-204(b).
2. Yale Sch. of Mgmt., Modern Antitrust Enforcement, https://som.yale.edu/centers/thurman-arnold-project-at-yale/modern-antitrust-enforcement.
3. Dep't of Just., Choose Justice, Guide to the U.S. Department of Justice for Law Students and Experienced Attorneys (2011), https://www.justice.gov/d9/pages/attachments/2022/05/30/legal-careers-brochure.pdf.
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