New head of US state AGs' antitrust coalition vows to bring tough cases regardless of what lawmakers, judges do

23 Aug 2021 9:59 pm by Max Fillion

Federal Trade Commission

State attorneys general will continue to bring tough antitrust cases regardless of what lawmakers or judges do, the new head of a national task force geared at coordinating state competition enforcement told MLex in an interview.

Gwendolyn Cooley — an antitrust enforcer in the Wisconsin attorney general’s office for the past 17 years whose accolades include leading a 42-state coalition in a monopolization case against the maker of opioid treatment Suboxone — will replace Virginia’s Sarah Oxenham Allen as chair of the National Association of Attorneys General Multistate Antitrust Task Force. With her appointment set to go into effect Oct. 26, she agreed to speak with MLex about her goals for the position and views on how state antitrust enforcers can best promote competition in the US.

Cooley takes the chair at a crossroads in US antitrust enforcement. At the federal level, lawmakers are considering whether the 100-year-old antitrust laws are equipped to handle the demands of a modern economy dominated by tech behemoths and new business models. State enforcers face similar questions after a DC federal judge recently dismissed their monopolization suit against Facebook, finding that they lacked authority to challenge the social media giant’s six- and eight-year-old acquisitions of WhatsApp and Instagram, respectively.

A group of state attorneys general — including Cooley’s boss, Wisconsin AG Josh Kaul — gestured to the ruling in a letter asking Congress to pass legislation “confirming” that states are on “equal footing” with federal antitrust enforcers, “including with regard to the timing of challenging anticompetitive mergers or practices.” Senator Mike Lee, the ranking member on the Senate antitrust panel, during a hearing a few days later said a bill he co-sponsors will put states on “equal footing” with federal enforcers. The bill would give deference to state AGs in selecting a court to file an antitrust lawsuit in.

But Cooley, noting that many state antitrust laws are identical to the Sherman Act, said that states already act as if they have the same enforcement capabilities as federal enforcers under that law.

“It would be nice for Congress to pass a bill that says we are on equal footing but we will continue to litigate our cases that way regardless,” she said.

She acknowledged, though, that there are areas of antitrust law, including in merger enforcement, where states’ enforcement powers are equal to those of private parties in the US. When asked if she supported changes to the antitrust laws that would give states more enforcement tools, Cooley said state antitrust enforcers are litigators whose goal is to win cases, regardless of what Congress and the courts decide.

“I am a litigator, and all my colleagues across the country are litigators,” Cooley said. “It’s our job to prove what courts want us to prove, and so that kind of discussion about whether we should have the consumer welfare standard” or other reforms is "kind of up to the courts and Congress, and we will continue to show up and prove the things we need to prove."

In that vein, Cooley declined to discuss what the states might advocate for as the Federal Trade Commission and Department of Justice are reviewing the Vertical Merger Guidelines issued last year. The FTC, under the new leadership of Chair Lina Khan, rescinded the guidelines in a 3-2 vote last week, while the DOJ said that it is keeping the guidelines in place but will continue reviewing them alongside the FTC.

“If there is a situation where they decide to do a new set of vertical mergers guidelines, I think attorneys general would like to offer some of our wisdom and experience as they put those together,” Cooley said.

Beneficial Differences

The differences between the state and federal antitrust statutes can benefit competition by supporting federal antitrust enforcers and in bringing unique cases at the state level, Cooley said.

“Our greatest tool is the fact that we don’t all have to do the same thing,” Cooley said. “And we have individual states that do individual things. We have small things like hospital mergers that get reviewed and challenged by states.”

In supporting federal enforcers, Cooley noted that state enforcers have a deeper understanding of local markets than their counterparts in DC.

“If you are investigating a hospital transaction in Wisconsin, it’s going to make a lot more sense for you to call me and talk to me about the hospitals and who goes to which hospital and how easy it is to get to one or another,” Cooley said.

And federal enforcers offer a lot of resources that the states don’t have, such as in-house economists, she said.

Cooley also touched on the US Supreme Court’s recent unanimous decision finding the FTC can't seek disgorgement under Section 13(b) of the FTC Act. Many states don’t face similar limitations, Cooley said, because of laws authorizing disgorgement in antitrust cases.

Leading, coordinating, educating

Cooley told MLex that she breaks down her new responsibilities into three buckets: leading, coordinating and educating.

She said she hopes to continue the leadership that Allen, her predecessor, brought to the more than 50 antitrust enforcement bureaus in states and territories across the country, offering her coordination of multistate monopolization cases against Google and Facebook as an example.

The NAAG antitrust chair’s coordination duties focus mainly on ensuring states have the resources they need to investigate and bring cases, Cooley said, adding that “coordinating staff, frankly, is a lot easier than coordinating attorneys general.”

When asked if the ever-divided state of US politics bore itself out in state antitrust cases, which often feature Republican and Democratic state AG co-signees, Cooley said “we are more alike than we are different.”

“We have a lot of areas of disagreement; our biggest areas of disagreement are logistical, they are not substantive and they are not partisan,” Cooley said. “And so, the way that we’ll address those is my favorite way, which is creating a set of best practices to make sure that those logistical areas are straightened out as best as possible and then just to recognize that sometimes lawyers are going to disagree about the best way to do things.”

Cooley said that coordination is necessary for efficient litigation as well. It’s better for companies “if we only have to do things once,” she said.

“If there only has to be one deposition or investigational hearing of an individual, if the states are there in the very first instance, we can work better together,” Cooley added.

On the education front, Cooley said she intends to roll out more intense training for more experienced antitrust attorneys and to coordinate state-specific and more basic trainings for antitrust newcomers.

And newcomer interest has definitely increased in recent years, Cooley said. “I think we’re seeing a revolution in antitrust of attention and that attention is being paid to using antitrust as a tool for good.”

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