State-Federal Relations

Kathleen Foote, Nov 14, 2012

Antitrust enforcers in the offices of state attorneys general frequently find ourselves between a rock and a hard place when it comes to public perceptions of our work. State antitrust enforcement tends to be subject to criticism as misguided-or worse-whenever it diverges publicly from enforcement by the federal agencies. Yet when it doesn’t diverge it is often labeled “redundant” in the pejorative sense of that term. The reality is a good bit different from the perception in either case.

Much of the perception is a legacy of the historic 2001 split between the U.S. Department of Justice Antitrust Division (“DOJ”) and state government prosecutors over appropriate remedies in the Microsoft case, which arose after an exemplary partnership throughout the liability phase of the case. The rupture led to two contemporaneous and highly visible tracks through the same courtroom in early 2002: a Tunney Act review of whether the DOJ settlement (joined by nine states) was in the public interest, and a six-week merits trial in which nine other states sought to prove that far stiffer remedies should be required. Judge Kollar-Kotelly’s ultimate rulings rejected most of the state-requested remedies but added some terms to the DOJ settlement, thus largely conforming the state and federal results. The subsequent years of joint enforcement of the affirmative mandates of the Microsoft decree under active court supervision marked a return to smooth sailing between the…

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