Last week the New Jersey State Attorney General (AG) Matthew J. Platkin announced the creation of a new division: the Antitrust Litigation and Competition Enforcement Section (ALCES) within the Division of Law (DOL). The permanent and stand-alone section is based out of the DOL’s Newark office and is intended to reinforce the state’s capacity for robust antitrust protection. This marks yet another effort by a state AG to increase antitrust resources and focus on both large and small antitrust issues to promote fair and competitive markets.
New Jersey is no stranger to taking part in antitrust cases. The Office of the Attorney General (OAG) has been involved in numerous cases against major technology corporations, including Apple (in which the DOL is local counsel for the federal and state plaintiffs), as well as other industries such as the airline, retail, labor, healthcare, and pharmaceutical industries.
Even in light of this antitrust enforcement history, the addition of the ALCES is particularly meaningful as New Jersey is significantly increasing the resources and attention devoted to antitrust enforcement, both in terms of single-state and multistate actions. AG Platkin has also underscored the importance of antitrust cases by stating that he has “the critical obligation to protect consumers and workers from the problems that result from unchecked monopolies and oligopolies. With [the addition of the ALCES], [the OAG is] acting to safeguard the interests of [the state’s] residents and foster a fair and competitive marketplace for all.”
In recent years, we’ve seen increased collaboration between state and federal antitrust enforcers, signaling that state AGs do not see antitrust concerns as a solely federal issue. State AGs’ willingness to wade into antitrust waters may result from their states’ different, and sometimes less stringent standards, than that of the Sherman Act or Clayton Act. For instance, many states’ antitrust laws permit monetary recovery where it would not be allowed under federal law, e.g., indirect purchasers harmed by anticompetitive practices. State AGs may be further encouraged to bring antitrust cases in the near future as experts predict that there is a good chance that the United States Supreme Court will overrule or alter the long-standing doctrine of Chevron deference and the Federal Trade Commission’s (FTC) ability to enforce certain antitrust laws.
In addition to partnering with federal and other state antitrust enforcers, state AGs have a variety of tools at their disposal that allow them to bring a steady stream of antitrust cases. The passing of the Antitrust Enforcement Venue Act (AEVA) and the NAAG’s Antitrust Committee, provide state AGs with frameworks and resources to pursue these types of cases. The AEVA was signed into law less than two years ago and provides state AGs with the option to avoid having their antitrust cases consolidated in Multidistrict Litigation. This can result in cases being placed in different courts or on a different track from similar cases brought by private class action plaintiffs—or even other state AGs. The NAAG Antitrust Committee facilitates the work of attorneys general in enforcing state and federal antitrust laws, in addition to supporting the NAAG’s Multistate Antitrust Task Force, which is responsible for coordinating multistate antitrust litigation.
New Jersey isn’t the only state with a division dedicated to antitrust cases. California and Colorado, for example, have long-standing antitrust divisions. We expect to see these and other state AGs continuing to bolster their antitrust efforts. And because states are often more proximate to small and medium sized business in their respective states than the DOJ or the FTC, we expect state AGs will continue to bring antitrust enforcement actions against companies that would otherwise go unnoticed by federal agencies.
Our team will continue to stay apprised of state AG antitrust developments. For weekly updates on recent state AG matters, sign up for Crowell & Moring’s state AG blog here.