§6.2 A. Federal Law

• Jurisdiction: New York

A. Federal Law

Section 4 of the Clayton Act⁶⁷⁴ authorizes State Attorneys General to bring actions for damages and/or injunctive relief for injury to the state, as well as its cities and other political subdivisions. In these actions, the Attorney General seeks to recover damages incurred by the state as a direct purchaser of goods or services.⁶⁷⁵ If the purchaser is a state agency or institution, state law determines whether the Attorney General may bring suit in the name of the state alone.⁶⁷⁶ In some states, either by statute or by common law, the Attorney General automatically represents all governmental entities, even at the local level.⁶⁷⁷

Under federal law, State Attorneys General may not seek monetary damages for injury to the general economy of the state,⁶⁷⁸ but they may seek equitable relief for injury to the state’s economy under § 16 of the Clayton Act⁶⁷⁹ and may recover costs and attorney fees. The Attorney General may also bring injunctive actions on behalf of the state in its common law capacity as parens patriae to forestall injury to the state’s economy.⁶⁸⁰

State Attorneys General may challenge mergers pursuant to § 16 of the Clayton Act, under which they have the same standing as private plaintiffs. State Attorneys General may obtain both preliminary and permanent injunctive relief in these cases, including divestiture of assets.⁶⁸¹

Under title III of the Hart-Scott-Rodino Antitrust Act of 1976,⁶⁸² Attorneys General are also authorized to act as parens patriae for the natural person citizens of their states and may recover damages for violations of the Sherman Act that cause injury to those citizens. Damages are trebled and may be distributed either as authorized by the court or to the state as a civil penalty. The constitutionality of the parens patriae legislation has been uniformly upheld,⁶⁸³ and Attorneys General have brought numerous parens patriae actions since enactment of the provision.⁶⁸⁴ Because they do not require certification to proceed,⁶⁸⁵ parens patriae actions also have been recognized as “superior to a class action as a means for adjudication of collective claims.”⁶⁸⁶ Attorneys General may also pursue a class action under Rule 23 of the Federal Rules of Civil Procedure on behalf of other persons who have a claim under § 4 of the Clayton Act, including political subdivisions of the state.⁶⁸⁷

Although consumer protection claims are typically brought under state law, the enforcement and remedial authority of the State Attorneys General in the consumer protection area has been expanded into federal court in some instances through federal statutes that grant state Attorneys General authority to enforce particular federal laws.⁶⁸⁸ These federal...