The Mission and Agenda for State Antitrust Enforcement

• Author: Lloyd Constantine
• Published date: 01 December 1991
• Date: 01 December 1991
• DOI: http://doi.org/10.1177/0003603X9103600405
• Subject Matter: New Directions in State Enforcement

The Antitrust Bulletin/Winter 1991

The mission and agenda for state

antitrust enforcement

BY LLOYD CONSTANTINE*

835

The New England Antitrust Conference, now in its 24th year, has

traditionally been addressed by the Chairman

of

the Federal Trade

Commission (FTC) and the Assistant Attorney General in charge

of the Antitrust Division

of

the United States Department

of

Jus-

tice (DOJ), who present the government antitrust enforcement

agenda from the perspective of these federal agencies.

Recognizing the increasingly important role

of

the state attor-

neys general in antitrust enforcement and the emerging trend

of

multistate enforcement, the Conference amended its format in

1987 to include the states chief enforcer. This is the third time

that I write and speak in that capacity. On those previous occa-

sions Idescribed the period 1981 to 1987 as a

"dark

age"

for

antitrust when favored economic theory was elevated above mar-

ketplace reality and the rule

of

law, but predicted that the states

*McDermott, Will &Emery, New York City.

EDITOR'S NOTE: The following was an address

presented

at the 24th

Annual New England Antitrust Conference. Harvard Law School, Novem-

ber 2, 1990. At the time, the writer was Assistant Attorney General in

Charge, Antitrust Bureau. Office

of

the Attorney General, New York

State.

C 1992 by FederalLegal Publications,lnc.

836 : The antitrust bulletin

ascendancy foreshadowed an antitrust renaissance.' In 1988, as

the Reagan enforcers left office I called for the establishment

of

a

regime of collective and coordinated enforcement among the fed-

eral and state antitrust agencies.! That idea was embraced by

James Rill, first in his capacity as co-anchor

of

the ABA's Kirk-

patrick II Commission,' which reported on the performance of the

FrC,

and later when Rill was appointed Assistant Attorney Gen-

eral.

On November 12, 1990, the fifth formal meeting

of

what the

three agencies call the Executive Working Group for Antitrust

Enforcement (EWG-A) will convene in Boston. More important

than these formal meetings is the daily interchange among these

agencies. They now share information, cross deputize staff, pro-

vide each other with briefs amicus curiae, and other forms of sup-

port,

and

even

jointly

investigate

under

uniform

civil

investigative demands. Joint litigation is a logical and likely next

step, which I predict will occur in 1991.

There are still serious and principled disagreements among

state and federal enforcers, but these are discussed in an atmos-

phere

of

mutual respect and recognition that the divergences are

balanced by broad areas of consensus.

Rather than describe the many developments that daily add

definition to the new order, one example from merger enforce-

ment will suffice.

In March 1987 when the states unanimously adopted their own

Horizontal Merger Guidelines, the Wall Street Journal reported

the

initiative

as

"an

attack

on the

Reagan

administration's

Constantine, Antitrust Enforcement Today and in the Nineties, 18

J. REPRINTS ANTITRUST L. &ECON. 39

(1988).

2The Antitrust Enforcement Agenda

for

the New Administration:

The State Perspective in

22ND

ANNuAL

NEW

ENGLAND ANTITRUST CONFER-

ENCE-ANTITRUST

AND A NEW ADMINISTRATION: PRESSURES FOR

NEW

PER-

SPECTIVES

(MCLE),

at 1.

3Report

of

the American Bar Association Section

of

Antitrust Law

Special Committee to Study the Role

of

the Federal Trade Commission,

58 ANTITRUST L.J. 43

(1989).