Kevin O’Connor, Dec 12, 2012
For over two decades, the relationship between the state and federal antitrust enforcement authorities has varied from productive cooperative efforts to, at times, outright hostility. By most accounts, however, the relationship in the past few years has been quite productive both with respect to merger reviews and non-merger conduct investigations and lawsuits.
However, there are important nuances to the state-federal relationship that bear emphasis. First, over the past twenty-five years, the state enforcers and the federal agencies have created a system of joint merger review that can be quite efficient and likely to lead the multiple enforcers to a common end point if handled competently by the parties to the transaction. That said, there are often difficult issues that need to be carefully addressed at the beginning and at the end of merger reviews. For example, merging parties enjoy comprehensive confidentiality protection with the federal agencies under the Hart-Scott-Rodino regime. But parties often struggle with how to create or at least simulate this confidentiality regime with state enforcers in the face of expansive state public records laws and the absence, at least in many cases, of explicit airtight confidentiality protections in state law. Similarly, although the system has evolved to provide for fairly streamlined review of transactions, at the end of the review it is important to understand that individual states may and often do demand relief or conditions not demanded by the federal agency or other state involved.
Second, the procedural template governing joint state-federal merger reviews does not provide a controlling template for non-merger conduct cases but, it is fair to say, it provides at least a persuasive model. Both federal agencies have worked closely on several large conduct matters with groups of states. But just as in the case of joint merger reviews, confidentiality issues and differing settlement postures (e.g., most famously, the Microsoft case) can complicate resolution of these matters. Moreover, the availability of more expansive remedies to state enforcers (e.g., indirect purchaser damages) makes the joint litigation environment far more complicated than the merger review arena.
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