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States confront enforcement challenges as US DOJ, FTC scoop up talented antitrust lawyers
30 December 2022 16:23 by Khushita Vasant, Chris May
US state attorneys general are working to cope with the attrition of their best antitrust lawyers, who are being cherry-picked by the US Department of Justice and the Federal Trade Commission.
As states take on the well-staffed, well-funded legal teams of giant corporations, state attorneys general are becoming increasingly vocal about federal agencies poaching their most talented and senior staff.
“They keep stealing our people,” Karl Racine, attorney general of the District of Columbia, told MLex in a recent interview on the sidelines of a nonpartisan national forum for US state attorneys general.
US states partner with the DOJ’s antitrust division and the Federal Trade Commission to chase down anticompetitive conduct, but the states also spearhead their own investigations despite limited staffing and funding.
Federal agencies, however, are finding themselves hungry for talent with the Biden administration's whole-of-government approach to competition regulation.
Racine cited the FTC’s current acting chief of staff, Elizabeth Wilkins, who had been chief of staff and a senior policy counsel at the District of Columbia AG's office from 2016 to 2020. Wilkins landed a position with the Biden transition team before heading to the FTC.
Racine noted the loss of another colleague, Ben Wiseman, now deputy director in the FTC’s Bureau of Consumer Protection. Wiseman spent six years working on Racine's team — first as assistant attorney general and later as director of the District of Columbia Office of Consumer Protection.
Gwendolyn Cooley, Wisconsin's assistant attorney general for antitrust and chair of the National Association of Attorneys General Multistate Antitrust Task Force, said at a recent conference that her office continues to seek antitrust lawyers. She urged reporters huddling around her to spread the word.
“We are staffing up, but we still need more bodies," Cooley said. "Nobody has enough resources. We’ve been surprisingly effective with the resources. We're really getting some great people joining our group, but we always need more people.”
Other AG offices have also seen losses of top antitrust counsel this year.
The DOJ picked Sarah Allen to be the agency’s special counsel for state relations. Allen had been leading Virginia's efforts in multistate lawsuits against Google and Facebook, and spent more than 20 years at the Virginia attorney general’s office as senior assistant attorney general and antitrust unit manager.
“You know, Virginia has got a really good antitrust group," said Andrew Ferguson, Virginia’s solicitor general, at a recent conference. "In fact, it was so good the DOJ hired the leader of our antitrust group months ago.”
Ferguson shared a panel with Doha Mekki, the DOJ’s principal deputy assistant attorney general for antitrust.
Mekki said the DOJ had just hired Laura Edelson to be the antitrust division’s chief technologist, but the agency needs 400 more to take on a burgeoning pile of work. The agency needs “multi-talented resources that we can deploy to tackle big problems," she said. "We'll be doing the best that we can with what we have.”
Ferguson, however, said that resource constraints are “substantially worse among the states.”
Similar scenarios have played out in Iowa and Washington state.
FTC Chair Lina Khan brought Rahul Rao on board as deputy director of the Bureau of Competition in September.
Rao spent four years as assistant attorney general for antitrust in the Washington state AG’s office.
Alvaro Bedoya, the FTC’s newest commissioner, picked Max Miller in May to be one of his attorney advisors. For nearly eight years, Miller ran the antitrust shop at the Iowa Attorney General's Office as assistant attorney general.
Miller is well aware of the manpower and financial crunch state enforcers face, and has lamented the states' lack of resources to address competition problems. He has backed a suggestion that states seek fees for merger filings to help attain adequate funding.
Staffing and funding constraints have had an effect on enforcement.
At the same conference where Racine bemoaned the departure of experienced staff, Iowa Attorney General Tom Miller cited resource constraints as the reason his office hasn't been directly involved in a multistate action against Google for allegedly monopolizing the adtech market.
“We’re very supportive of that case," said Miller. "We think it’s a good case.” He said it has been nearly five years since he hired an additional attorney with antitrust oversight responsibilities.
Labor economist Nancy Rose, who worked at the DOJ’s antitrust division from 2014 to 2016, said some hospital mergers that shouldn't have gone through did anyway because "state antitrust enforcement is highly heterogeneous and almost generally understaffed."
“So probably some of these just got through because no one had time to look at them and then go to court to challenge them,” Rose said during a talk on antitrust enforcement in labor markets.
Ferguson, the Virginia solicitor general, said the root of the problem is that states find themselves “kind of locked" into a difficult situation where they don't have an obvious incentive to devote a lot of resources to antitrust enforcement because it seems a lot of funding is devoted to it at the federal level.
“I don't mean this in a bad way, but you know, there are two federal agencies that enforce the federal antitrust laws. They tend to kind of crowd out state enforcement because the response to a lot of requests for additional state antitrust resources is, ‘Isn't that, like, a federal thing?’” Ferguson said.
The problem isn’t limited to one political party or administration, he said. States just don't have sufficient resources to keep up with the Big Tech companies and other entities potentially in violation of the law.
“This is even more aggravated in the states, but it's just a result of the fact that states are smaller governments and there has, over the course of the last 115 years, been pretty substantial kind of deference to federal antitrust law and federal antitrust enforcers,” Ferguson said.
Doug Peterson, outgoing Nebraska attorney general, told MLex in an interview that his office has upped its game by hiring new lawyers and devoting additional resources to antitrust enforcement.
“You could say we upped it 100 percent — we went from one [lawyer] to two,” Peterson said. “We're just 70 lawyers in a 1.9 million population state.”
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