New Jersey Strengthens Competition Law Enforcement with New Antitrust Section

Last week, New Jersey Attorney General (AG) Matthew J. Platkin announced the creation of a new division: the Antitrust Litigation and Competition Enforcement Section (ALCES) within the Department of Law (DOL). The permanent and autonomous section is housed in the DOL’s Newark office and is intended to strengthen the state’s ability to provide robust antitrust protection. This marks AG’s next effort to increase antitrust resources and focus on both large and small antitrust issues to promote fair and competitive markets.

New Jersey is no stranger to being involved in antitrust cases. The Office of the Attorney General (OAG) has been involved in numerous cases against major technology corporations, including Apple (for which the DOL is local counsel for plaintiffs at the federal and state levels), as well as other industries such as airlines, retail, labor, healthcare health and pharmaceutical industry.

Even in light of antitrust enforcement’s history, the addition of ALCES is particularly significant because New Jersey significantly increases the resources and attention devoted to antitrust enforcement, both in the context of single-state and multi-state activities. AG Platkin also emphasized the importance of antitrust cases, stating that it has a “critical responsibility to protect consumers and workers from problems resulting from uncontrolled monopolies and oligopolies. Through (adding ALCES) (OAG) works to protect the interests of the people (of the state) and promote a fair and competitive market for all.

In recent years, we have seen increased cooperation between state and federal antitrust enforcement agencies, signaling that state AGs do not view antitrust issues as solely a federal issue. State AGs’ willingness to wade into antitrust waters may be due to different, and sometimes less stringent, standards in their states than those set forth in the Sherman Act or the Clayton Act. For example, many states’ antitrust laws allow recovery of funds where they would not be permitted under federal law, such as for indirect purchasers harmed by anticompetitive practices. State AGs may continue to be encouraged to pursue antitrust cases in the near future as experts predict there is a strong chance the U.S. Supreme Court will invalidate or amend the long-standing doctrine Chevron respect and the ability of the Federal Trade Commission (FTC) to enforce certain antitrust laws.

In addition to working with federal and other state antitrust enforcement agencies, state AGs have a number of tools at their disposal that allow them to bring a steady stream of antitrust cases. The passage of the Antitrust Enforcement Venue Act (AEVA) and the operation of the NAAG Antitrust Committee provide state AGs with the framework and resources to pursue these types of cases. The AEVA Act was signed into law less than two years ago and provides state AGs with the ability to avoid having their antitrust cases consolidated into multidistrict litigation. This may result in cases being filed in different courts or on a different track than similar cases brought by private class action plaintiffs or even other state-owned AGs. The NAAG Antitrust Committee facilitates the work of attorneys general in enforcing state and federal antitrust laws and supports the NAAG Multistate Antitrust Task Force, which is responsible for coordinating multistate antitrust investigations.

New Jersey is not the only state with a division dedicated to antitrust matters. For example, California and Colorado have long-standing antitrust departments. We expect these and other state-owned AGs to continue to strengthen their antitrust efforts. And because states are often closer to small and medium-sized businesses in their states than the Justice Department or the FTC, we expect that state AGs will continue to take antitrust enforcement actions against companies that would otherwise go unnoticed by the agencies federal.

Our team will continue to be updated on developments in antitrust law in the AG country. To receive weekly updates on the latest State of AG issues, subscribe to Crowell & Moring’s State of AG blog here.