By: Christopher J. Allen
The National Association of Attorneys General (NAAG)’s Eastern Region Meeting, held August 1-3, 2023 in Connecticut in conjunction with the Attorney General Alliance, included an “Antitrust Bootcamp” that surveyed the history and current state of and future challenges for state and federal antitrust enforcement. AGs from 9 states (CT, DE, ME, NH, NY, OK, RI, TN, and VT) and Puerto Rico were in attendance, plus senior staff and antitrust AAGs from at least 10 additional states (CA, CO, DC, MA, MS, NV, NJ, NC, PA, WI).
In this second in a series of three articles about the Antitrust Bootcamp, we review what the panels had to say about state-federal coordination and the need for bipartisan coordination to continue.
Vermont AG Charity Clark moderated “How AGs and Federal Partners Are Working Together,”, featuring Special Counsel for State Relations at the US DOJ Antitrust Division (and former Virginia antitrust AAG) Sarah Oxenham Allen; Wisconsin antitrust AAG Gwendolyn Cooley; Mississippi Deputy Director and Special Assistant AG Hart Martin; Massachusetts Antitrust Division Chief William Matlack; and FTC Northeast Regional Office Director William Efron.
The panel began by identifying the main challenges in state-federal coordination including a lack of state resources, issues with communication and trust between the states and federal counterparts, and the need for states to devote time to other matters and issues (i.e., consumer protection).
AGs’ Relationship with The Feds Is At An All-Time High
At the same time, the panelists agreed that AGs’ relationship with the federal government is currently the best it has ever been. Key reasons for this include:
- The hiring of full-time state liaisons at US DOJ and FTC.
- New proposed changes to the HSR premerger notification form that, if agreed, would allow companies to voluntarily check a box to allow the federal government to coordinate more closely with AGs by providing initial permission to tell the states there is a filing and to share filing and any supporting documents, although states would still need to obtain HSR waivers to obtain access to materials from second request.
- New structures and relationships to burden-share throughout the investigation and enforcement process. States designate liaisons to build relationships with federal counterparts and coordinate to eliminate redundancies and use states as “force multipliers.”
- The creation of committees of AG staff with responsibility for coordinating investigations and litigation across the states and with the federal government allowing the pooling of resources for integrated depositions, document reviews, third-party inquiries, and trial preparation and participation. A major example of this is the upcoming Google antitrust trial, in which the AGs and federal government are planning to play key, complementary roles.
But There Is Still More Work To Do
In terms of continuing to work together, the AAGs agreed that while the federal government offers useful training and support to the states, they could do more, particularly sharing economic analysis and expertise earlier and more fulsomely. The federal representatives acknowledged the key role states play as an indispensable source of information due to their local knowledge and proximity to allow federal enforcement to identify non-HSR reportable mergers and more localized anticompetitive conduct.
Finally, the states noted that there is now an “amicus chair” selected from AG antitrust staff and tasked with identifying comment and amicus opportunities for states to weigh in and provide their unique perspectives on issues pursued by their federal counterparts.