State attorneys general have always played a role in antitrust enforcement. The federal antitrust laws specifically allow for state attorneys general to sue to enforce the laws. Most states also have their own laws prohibiting anticompetitive activity, providing attorneys general with additional bases to investigate and pursue antitrust claims. Indeed, in some areas - such as the ability of indirect purchasers to recover antitrust damages - state law varies substantially from federal law.

A recent action by the Attorney General of the State of New York underscores the need to be aware of state antitrust enforcement. The New York Attorney General sued a mattress company in state court, alleging its distribution practices, including minimum resale price maintenance, were per se unlawful. This theory would directly conflict with the US Supreme Court's interpretation of federal antitrust laws, and represents a new willingness to be aggressive.

Please join us for the next installment in our ongoing series of 30-minute teleconferences as we discuss developments in state antitrust enforcement. Partners Ty Fahner, a former Attorney General of the State of Illinois, and Richard Steuer, the Vice-Chair of the American Bar Association's Section of Antitrust, will discuss the unique characteristics of state antitrust enforcement, including:

  • What are the key enforcement priorities for state attorneys general that may differ from federal priorities?
  • Does the role of politics in enforcement decisions differ between state and federal enforcement?
  • What role does the ability of states to obtain legal fees play in an era of tightening budgets?
  • What are the strategic distinctions in responding to an investigation from a state attorney general, as compared to one of the federal agencies?

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