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While the antitrust policy priorities of the new Administration continue to be developed, one possible result of the election may be increased activity by state attorneys general (AGs). Antitrust enforcement is a shared enterprise. The Department of Justice and the Federal Trade Commission have joint jurisdiction as federal enforcers. But federal antitrust laws also empower both state enforcers and private litigants. Likewise, state antitrust and consumer protection statutes provide a second level of legal authority to punish and prohibit anticompetitive conduct—and are often enforced uniquely by state enforcers.
One historical reaction to a reduction in federal antitrust enforcement has been an increase in state investigations (and private lawsuits). With the current slate of litigation against tech companies, alleging unilateral conduct theories, and the incoming Administration’s perceived skepticism of tech monopolies, the most likely possible change may be coming in merger enforcement. The outgoing Administration was known for its attempts to aggressively change merger policy and law and its mixed record of litigating cases. Wall Street appears to anticipate reduced enforcement and increasing deal flow.
Will state AGs step in, and would such action pressure federal enforcers? It is not unheard of for state AGs to independently pursue merger litigation—as illustrated by the Sprint/T-Mobile litigation during Trump I.
Practice Guidance tracks key state AG offices and is increasing our coverage of significant state antitrust laws, helping you stay on top of state AGs reactions to the new Administration and new directions.
To keep up to date with the latest developments at the state AG level, follow the California Attorney General Antitrust Tracker, New York Attorney General Antitrust Tracker, and Texas Attorney General Antitrust Tracker. For federal developments, see DOJ/FTC Antitrust Agency Developments Tracker, DOJ Antitrust Case Tracker (Civil Nonmerger), and FTC Antitrust Case Tracker (Civil Nonmerger).
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