Dear Readers,
This edition of the Antirust Chronicle features contributions from States Attorneys General and their staff throughout the U.S.
It is widely underappreciated that States Attorneys General form an essential part of the “nuts and bolts” of antitrust enforcement. The contributions to this Chronicle shed a much-needed spotlight on their vital role, both on an intellectual and practical enforcement capacity.
We lead off this Chronicle with an edition of our CPI Talks interviews with Colorado Attorney General Phil Weiser.
Paula Blizzard, Brian Wang, Peter Adelson, Matthew Maeder &Tom Zick discuss how competition and monopoly power in technology platforms have become global issues in the past decade. Challenges brought by various authorities to those platforms have struggled to adapt the antitrust laws to new technological and economic realities. This article elucidates on these challenges and proposes some practical solutions. Delving into the nuts and bolts, Christina Grey elucidates how both federal and state enforcers begin treating non-compete and no-poach agreements to be anti-competitive in violation of the Sherman Act. Matthew Michaloski discusses the uniquely common law concept of “parens patriae” and how it interacts with broader law enforcement concepts, from the point of view of a state-level enforcer.
On a broader level, Amy N. L. Hanson reflects on how history shows that individuals stop limiting their free will and begin acting for themselves when governments fail to maintain safe and functioning societies that provide public benefits. The people of the United States founded their chosen system of government to provide checks and balances on all types of power.
On a similar note, Jay Himes, Jeremy Kasha & Daniel P. Weick assess Section 16 of the U.S. Clayton Act, which authorizes “injunctive relief . . . against threatened loss or damage” due to an antitrust violation “under the same conditions and principles as injunctive relief against threatened conduct . . . is granted by courts of equity [.]” While State enforcers and other plaintiffs have long turned to this provision for non-monetary relief to redress anticompetitive conduct, the Supreme Court’s initially expansive construction of Section 16 and other federal laws has narrowed in recent decisions. Facing this potential retrenchment in federal remedies, antitrust enforcers could consider the laws of individual States, which offer alternative, additional remedies beyond traditional injunctions and damages.
In turn, Jeff Dan Herrera & Cholla Khoury discuss how antitrust practice faces a dynamic moment in its history. Today, it faces significant debates centered on the direction jurisprudence and enforcement should proceed. These debates pose important questions with significant policy, economic, and political outcomes. While such debates remain fairly abstract and are largely divorced from the antitrust enforcement work that state attorneys general perform, state AGs are nonetheless at the coalface.
Finally, Gwendolyn Cooley, Caleb Pracht & Hart Martin examine the impact of 2021’s Supreme Court decision in NCAA v. Alston. Not only did the Court confirm that the NCAA’s cap on education-related compensation was anticompetitive, but they also questioned the ability of the rest of the compensation scheme to pass antitrust muster. This decision sparked further changes to the NCAA’s name, image, and likeness rules for college athletes, provoked new legislative proposals, and inspired more legal challenges.
Drawing on this theme, in sum, examining the practices of States Attorneys General is far from “insider baseball.” It is a necessary part of any proper understanding of how antitrust enforcement works in practice.
As always, many thanks to our great panel of authors.
Sincerely,
CPI Team
