Merger Review: states’ Attorneys General

Along with the Federal Government, the states are also empowered to enforce the antitrust laws. If a merger is deemed anticompetitive, the state’s attorney general can bring a lawsuit on behalf of the residents of their state under federal antitrust law. In mergers, state and federal enforcers typically work collectively to investigate the competitive effects. This allows the state to use the same investigative procedures used by the Department of Justice Antitrust Division (DOJ) during the “second request” process. States can seek documents from the parties, depose the parties, and interview third parties and consumers. In the past, the states and DOJ have worked effectively in health insurance mergers. Moreover, the states have also established the National Association of Attorneys General Antitrust Multistate Task Force, a group dedicated to coordinating antitrust litigation across all states.

Most importantly, along with coordination with other states and the federal enforcement agencies, states are also empowered by their own antitrust laws. In some instances, the state’s attorney general will file suit against merging parties even if the DOJ does not.

Given the significant overlaps, the parties will have to pass antitrust scrutiny with nearly every state’s attorney general. That means that there are potentially 51 different antitrust challenges, including Puerto Rico, that could arise. Already, some states are investigating the mergers. Given the likelihood that the states are working directly with the DOJ, there is no firm timeline on a completion of the review process. Instead, it is incumbent upon concerned parties to voice their concerns directly to their state’s attorney general’s office.

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