Until recently, state and federal enforcers shared a common outlook in their approach and goals for antitrust enforcement. Most state antitrust laws mirror federal laws, and a consistent approach to antitrust enforcement has generally been the norm. In fact, state and federal antitrust enforcers frequently cooperate in their investigations, sharing information and expertise, and seeking consensus whenever possible.

However, recent statements and actions point to a fissure in the bond between state and federal enforcers. For example, in public comments presented during the June 12, 2019, Federal Trade Commission hearing in the “Competition and Consumer Protection in the 21st Century” series, 43 state attorneys general posited that the “errors of under-enforcement,” which they believe characterize current enforcement policy, outweighed those of “over-enforcement.” These state enforcers went on to advocate for a “recalibration” of enforcement policy towards a more aggressive approach. A recent enforcement action brought by the attorneys general of 10 states seeking to block an announced merger in the telecommunications industry, even before federal enforcers completed their investigation, appears indicative of this new enforcement philosophy.

Anticipating antitrust concerns of state enforcers has always been part of the pathway to navigating a health care transaction through the regulatory minefield. In light of this increased focus at the state level, identifying and addressing antitrust concerns of state enforcers appears to be more critical than ever.