Mr. Domen, who was previously part of the Tennessee OAG, also shared his thoughts on state enforcement. He said that priorities in the Tennessee OAG are also developed by assessing impacts on local markets in Tennessee. Mr. Domen emphasized that around 20 years ago, there was an awakening in which OAGs nationwide took an active role in antitrust and consumer protection matters because federal agencies were not adequately protecting local interests.
Mr. Perlman asked whether the panel title was even appropriate, or whether the rise in state enforcement is merely a perception of a change that happened several years ago. Ms. Wilberforce believes, without doubt, there has been a rise in state enforcement on antitrust and consumer protection matters. She used healthcare mergers and non-compete regulations as examples, stressing that antitrust is a big topic in public conversations, that has encouraged states to allocate more resources to antitrust enforcement. Ms. Wertz noted that the main difference is that OAGs would solve their concerns primarily through settlements in the past, but now AG offices are litigating more cases. She said that such a strategy shift enabled OAGs to be more active in large state-specific matters.
The conversation then pivoted to the resources available for state antitrust enforcement actions and the structure the OAGs. General Ford shared that some team members have been in his office during the tenure of three or four different AGs. He noted that such staff members know how to structure cases, and the whole team has a streamlined process to use available resources. General Ford highlighted that partnerships are essential, and collaboration with other states and outside counsel are good strategies to increase success. He emphasized that outside counsel adds additional resources and expertise, which is particularly critical for complex matters. For example, he noted that outside counsel was critical for the opioid cases where Nevada has received $1.2 billion in settlements.
Regarding outside counsel, Mr. Domen shared his experience of being on both sides of AG/ outside counsel collaborations. He used a hypothetical matter as an example, where multiple states face a large company defendant in a complex case. Mr. Domen noted that it is beneficial for OAGs to retain outside counsel when a large team of attorneys is needed to counter a large firm’s discovery resources. He was clear that the AGs direct and lead outside counsel's work. Such a model allows states to balance multiple matters at the same time. It can be an efficient and effective model in many situations. Ms. Wertz also shared her experience working with outside counsel. She said that the Pennsylvania OAG has collaborated with outside counsel in multiple cases, but they have done so very judiciously. She noted that in one case where the Pennsylvania OAG retained outside counsel, the Pennsylvania Supreme Court was critical of OAG for employing outside counsel. Mr. Wertz noted that when OAG collaborates with outside counsel, they work side by side as a team: it is not a sit-back-and-watch type of approach. Ms. Wertz also said that in large cases, even when working with outside counsel, OAG pulls staff members from other sections onto the matter as-needed.
The next topic in the conversation was federal antitrust enforcement. Mr. Perlman introduced this topic by highlighting that at least anecdotally, it appears that Republican administrations conduct fewer enforcement actions than Democratic administrations, but the first Trump Administration was more active in antitrust enforcement than expected. Mr. Domen commented that when looking at the actual figures, merger enforcement does not meaningfully change with changes in political control of the government. What is different, he emphasized, are the theories and concepts that support enforcement. He used the vertical merger guidelines as an example: FTC and DOJ published these guidelines several years before they were used, and the first Trump Administration used them to as a basis to challenge the AT&T/Time Warner merger. Mr. Perlman then asked about the “whole of government” approach and how OAGs collaborate with other state agencies to bring antitrust enforcement actions. Ms. Wertz and General Ford stated that they always work with different sections of their respective offices, as well as other state agencies. Ms. Wertz emphasized that involving other agencies helps OAGs to gain specific knowledge of the industries and with access to critical data sources. Collaboration with other state agencies also helps to develop an understanding of the behavior at issue and its effect on local constituents, said General Ford.
Regarding the Biden Administration’s focus on labor issues in merger reviews, Ms. Wilberforce said that mergers are highly likely to affect the related labor market, and the Biden Administration's efforts aimed to assess what job markets would look like after a proposed merger, and how that in turn would affect consumers. The Nevada OAG was active in the proposed Albertsons-Kroger merger because the office identified meaningful effects of the proposed transaction in local labor markets. General Ford shared that people would recognize his face from TV news for his involvement and intervention in the proposed transaction. Hence, he noted, labor market issues were at the forefront of OAG’s conversations with the merging parties and federal regulators. Mr. Domen echoed this sentiment: efforts of the Biden administration to combat non-poach agreements at restaurants had profound impacts in local labor markets.
Ms. Wertz emphasized the connection between antitrust enforcement and labor markets. Even though non-compete or non-poach bans aim to protect employees, they also benefit employers: businesses benefit from a strong supply of labor. Ms. Wertz reiterated that antitrust enforcers need to look at the labor dimension of mergers as markets continue to consolidate. She also described the new non-compete ban for healthcare practitioners in Pennsylvania. Enacted at the beginning of 2025, this new law restricts non-compete agreements for healthcare practitioners. New non-compete clauses that do not meet the statutory requirements will be void and unenforceable.
The next topic was criminal enforcement of antitrust violations at the federal and state levels. Ms. Wertz noted that there has been an increase in criminal enforcement of the antitrust laws, with the states being regularly prosecuting anticompetitive conduct in government procurement. Bid rigging, including for construction, raw materials, and school buses, among others, is the focus of most of the states' efforts. General Ford stated that the Nevada OAG has not actively sought criminal charges, at least during his tenure. One of the reasons, he explained, is that they aim to change conduct, and they often can achieve that goal through injunctive relief and settlements. He pointed out that Nevada law renders antitrust violations felonies, so criminal antitrust prosecutions could be instituted if necessary. Mr. Domen noted that the threat of potential sanctions or exclusions from government procurement often discourages violations of the antitrust laws. The threat of criminal sanctions alone carries weight, he emphasized.
Ms. Wilberforce noted that the federal government has not historically paid attention to some bid-rigging criminal cases, and the Procurement Collusion Strike Force will help identify local cases that states and agencies should consider prosecuting. She also said that having additional state enforcement in this space will help further eliminate bid rigging. Ms. Wertz clarified that many states coordinate with the DOJ on monthly calls and that there are training initiatives to promote competition in procurement. Public dollars are spent on procurement, so if there is corruption, the federal and state authorities must investigate it.
The next topic on the agenda was the relative importance of bringing a case versus winning the case. Ms. Wertz kicked off the panel's answers by saying that the Pennsylvania OAG will bring cases when the office thinks it have enough evidence and that the case is highly likely to succeed. She also said, however, that sometimes success is not measured by winning, like in cases in healthcare markets, where the litigation may result in legislative changes that address the problem. General Ford said that filing a lawsuit and winning the case is not the only way to achieve justice; sometimes, a conversation may be enough to change behavior. He was emphatic, however, that his office would bring lawsuits whenever deemed necessary.
Before ending the session, an audience member asked about the resources available to the states for antitrust enforcement and how resource scarcity affects priorities. The questioner also asked about shared state and federal priorities. Ms. Wilberforce said that agencies’ field offices are a valuable resource for states because they provide industry-specific knowledge. She also said that states will pursue action regardless of whether federal enforcers are taking action, and it may be the case that states and the federal administration have opposing positions on a particular matter. General Ford stated that the Nevada OAG makes decisions based on available resources.
The panel's final topic was potential conflicts between federal and state law. Mr. Perlman used the example of the Louisiana Certificate of Public Advantage (“COPA”), a state regulation that at least one federal district court has held creates an exception to federal HSR reportability for hospital transactions. Mr. Domen explained how COPA statutes work and noted that states must balance competition versus healthcare access. In other words, states must ensure competition to keep prices low, but also must sustain access to hospitals in the long term. Mr. Domen said that these competing societal interests are complex, and antitrust attorneys often fail to see both sides of the issue. Ms. Wertz explained that Pennsylvania does not have a COPA statute, but nonetheless the OAG reviews hospital transactions for both competition and continued access to care. She said that OAG wears many hats and will pursue the course of action that best serves the public. General Ford closed by saying that from a practical perspective, the AGs are elected to prevent anticompetitive in local markets. Accordingly, OAGs must do what is best for the public, locally, even when it does not align with federal enforcement priorities.
