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State and Federal Antitrust Enforcement: Complementary or Just Confusing?

 |  November 27, 2012

Posted by D. Daniel Sokol

Elinor Hoffmann (New York Office of the Attorney General) asks State and Federal Antitrust Enforcement: Complementary or Just Confusing?

ABSTRACT: Our federalist system and our belief in the social, political, and economic benefits of competition have spawned a multiplicity of antitrust enforcers. On the federal side, the Federal Trade Commission (“FTC”) and the Department of Justice’s Antitrust Division (“DOJ”) have overlapping jurisdiction with regard to civil antitrust enforcement, and the DOJ has sole jurisdiction to prosecute criminal violations of federal antitrust law. In almost every state, the state Attorney General plays a leading role in antitrust enforcement and, in many states, the Attorney General has both civil and criminal authority. On the local level, District Attorneys may prosecute criminal violations of state antitrust law. Beyond government enforcement, any “person”-individual, firm, or public entity-may sue to enjoin or recover treble damages caused by anticompetitive behavior, and private attorneys often represent classes of consumers who have suffered damage and who likely would not sue as individuals. These “private attorneys general” contribute to the legislative goal of maximizing enforcement of the antitrust laws.

From one point of view, our system looks inefficient and messy. Foreign enforcement officials sometimes quizzically wrinkle their brows, asking “how does this work?” (read, “how is this workable?”). But, history has taught us that this multi-faceted approach works quite well in the context of our competition driven system. Like most good outcomes, however, there are bumps in the road to success. This article focuses on just one type of collaboration-that between state Attorneys General (“state AGs”) and the federal enforcement agencies. While the state Attorneys General and the federal enforcement agencies have cooperated across many sectors, and in many contexts, this article will illustrate the state/federal interface by focusing on two specific contexts: (1) collaborative civil investigations, particularly mergers; and (2) state civil investigations that are separate from, but parallel to, federal criminal investigations.