State Antitrust Enforcement: The Same and Not the Same

We have a national policy that favors competition over other types of economic arrangements. Like other aspects of our federalist system, there are times when states determine that the best interests of their citizens require a stronger enforcement approach than that taken by the federal authorities, or vice versa. The authority of the states to act independently is strongly supported by statutes and Supreme Court precedent. Recent cases illustrate instances when the states have exercised that authority to pursue a result that they believe will best protect their citizens from anticompetitive harm.

By Elinor Hoffmann¹

I. INTRODUCTION

There has been much discussion in the past two years about the role of the states — that is, State Attorneys General — in antitrust enforcement. Some aspects are not controversial — for example, the right of a state to address a merger between two health care providers within a state.² And no one (save the defendant) questioned before the court the New York Attorney General’s authority to seek a nationwide injunction under Section 2 of the Sherman Act to stop a monopoly maintenance scheme with national effects.³ Views on the states’ exercise of their independent authority under federal law are most sharply presented in cases where both federal and state authorities investigate the same matter, under federal law, and reach different conclusions.

Challenges to the states’ authority to enforce the federal antitrust laws are