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State Attorneys General Look to Flex Antitrust Enforcement Muscle

Until recently, state and federal enforcers shared a common outlook in their approach and goals for antitrust enforcement. Most state antitrust laws mirror federal laws, and a consistent approach to antitrust enforcement has generally been the norm. In fact, state and federal antitrust enforcers frequently cooperate in their investigations, sharing information and expertise, and seeking consensus whenever possible.

However, recent statements and actions point to a fissure in the bond between state and federal enforcers. For example, in public comments presented during the June 12, 2019, Federal Trade Commission hearing in the “Competition and Consumer Protection in the 21st Century” series, 43 state attorneys general posited that the “errors of under-enforcement,” which they believe characterize current enforcement policy, outweighed those of “over-enforcement.” These state enforcers went on to advocate for a “recalibration” of enforcement policy towards a more aggressive approach. A recent enforcement action brought by the attorneys general of 10 states seeking to block an announced merger in the telecommunications industry, even before federal enforcers completed their investigation, appears indicative of this new enforcement philosophy.

Anticipating antitrust concerns of state enforcers has always been part of the pathway to navigating a health care transaction through the regulatory minefield. In light of this increased focus at the state level, identifying and addressing antitrust concerns of state enforcers appears to be more critical than ever.

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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

Patricia M. Wagner, Epstein becker green, health care, life sciences

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements