By FOCUS, A Leonine Business
In the past two years states have begun to play an increasingly active role in antitrust enforcement, particularly around merger reviews. Historically, these reviews have been primarily the domain of federal agencies, but recent developments indicate a shift toward greater state involvement. In 2023, six states introduced competition-related legislation, focusing on revising antitrust laws, particularly concerning market power and monopolistic practices. Oregon, for instance, passed SB 310, which increased civil penalties for antitrust violations. In California, the California Law Revision Commission is currently examining, as directed by the legislature, whether the state should make major changes to its antitrust and competition laws. The commission has scheduled three hearings with the goal of providing recommendations to the legislature by the end of the year. The first hearing was held in May and focused on the topic of single-firm conduct.
Other states have also enacted laws to require transaction notices, impose waiting periods and allow state attorneys general more authority in antitrust enforcement. The State Antitrust Enforcement Venue Act, signed into law by Democratic President Joe Biden in 2022, as part of an omnibus spending bill, was a pivotal development, permitting state attorneys general to maintain antitrust cases within their state courts. In Minnesota, Democratic Attorney General Keith Ellison is advocating for updates to the Minnesota Antitrust Law of 1971, including defining monopoly and monopsony power, increasing penalties for antitrust violations and giving the attorney general’s office more flexibility in penalizing companies that use their market share to raise prices. In Colorado, the attorney general is currently involved in litigation to block the Kroger-Albertsons merger, seeking a nationwide injunction independent of the Federal Trade Commission’s (FTC) actions.
On July 24, the Uniform Law Commission (ULC) published their antitrust model act called the Uniform Antitrust Pre-Merger Notification Act, offering a framework for states to implement premerger notification requirements. The model act mandates that companies must file a premerger notification and report form (commonly called an HSR form) with the state if they meet specific criteria. Companies seeking a merger must currently file an HSR form with the FTC and the Antitrust Division of the Justice Department. This model legislation from the ULC may pave the way for more state legislatures to consider addressing state antitrust enforcement.
The increasing involvement of states in antitrust enforcement marks a significant shift in how competition laws are implemented and enforced in the United States. There is a growing concern among state lawmakers of the need to protect local markets from monopolistic practices. The Uniform Law Commission’s model act could further encourage states to adopt comprehensive premerger notification requirements, enhancing their role in scrutinizing mergers and acquisitions. The ongoing developments in states like California and Minnesota are signs that state-level antitrust enforcement will likely play a more prominent role in the years to come. FOCUS will continue to monitor the developments of antitrust legislation at both the state and federal levels.