State lawmakers and attorneys general in both political parties are homing in on antitrust issues, part of a broader recent backlash over concentrated corporate power.
The trend includes multistate lawsuits, as well as legislation to modernize and beef up century-old antitrust laws.
The renewed focus on monopolistic practices follows decades of corporate consolidations along with the rise of global tech giants whose marketplace dominance impacts consumer choice.
“There is a bipartisan level of support for ensuring there is a fair marketplace,” said former Arkansas Attorney General Dustin McDaniel (D), who co-chairs national law firm Cozen O’Connor’s practice for clients facing state attorney general investigations and litigation.
Antitrust bills were introduced in the past two years in states including Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Pennsylvania and Washington. In the latter, lawmakers stiffened penalties for antitrust violations. Delaware lawmakers amended their state’s antitrust law.
Colorado lawmakers last year repealed the Colorado Antitrust Act of 1992 and replaced it with a new version of the law giving the attorney general more authority to investigate antitrust cases and boosting penalties. Rep. Mike Weissman (D), a prime sponsor of the updated law, said states have an important role to play in enforcing antitrust laws.
“A pattern of anti-competitive conduct might not rise to the level of most problematic nationally, but could be very problematic at the state level,” Weissman told Pluribus News. “That’s why any state needs to be able to co-enforce laws against anti-competitive practices, and that was the motivating spirit behind the Colorado Antitrust Act of 2023.”
Along with state legislation, U.S. Sen. Amy Klobuchar (D-Minn.) this year reintroduced the Competition and Antitrust Law Enforcement Reform Act with the goal of “overhauling and modernizing our laws so competition can flourish and American consumers are treated fairly.”
Enforcing antitrust laws is often viewed as the domain of the federal government, but states have played a role dating to the Progressive Era in the early 1900s. That is when the National Association of Attorneys General was founded in response to Standard Oil’s monopoly. Many state-level antitrust laws, which are generally modeled on the federal Sherman Act of 1890, date that era as well.
Recent state efforts to step up antitrust enforcement have coincided with a similar push at the federal level, amid a rise in trillion-dollar companies including Amazon, Apple, Google and Meta.
During the Trump administration, states teamed with the federal government to take on Google and Meta. The trend continued under President Biden, who signed an executive order on business competition and vowed to enforce antitrust laws “to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly.”
Under Biden, the Department of Justice and the Federal Trade Commission have filed a slew of actions challenging corporate mergers, alleged price-fixing and monopolistic behavior. The companies targeted include Apple, Amazon, Google, RealPage and Visa.
States have joined some of these cases: a challenge to the merger between grocery stores Kroger and Albertsons, and a lawsuit alleging concert promoter Live Nation Entertainment and its subsidiary Ticketmaster engaged in monopolistic practices.
Even amid an uptick in lawsuits, a growing number of state lawmakers think state antitrust laws are overdue for a refresh.
An antitrust modernization effort is underway in New York where Sen. Michael Gianaris (D) has introduced the Twenty First Century Anti-Trust Act to update existing law he says was “made for robber barons.” Most significantly, the bill would establish an abuse of dominance standard “to police abuses of power by dominant firms.”
“It would revolutionize the way we take on these dominant players and would do so in a way that is more consistent with the markets that have emerged in the last couple of decades,” said Gianaris, who made headlines in 2019 for his opposition to Amazon’s plan to build its second headquarters in Queens.
Abuse of dominance legislation has also been introduced in Minnesota where antimonopoly populist roots run deep.
“We’re probably late to the game collectively in terms of where the public is at and where the economy is at,” said Rep. Emma Greenman (D), a lead author of the bill.
Other Minnesota antitrust bills target monopsony power, in which there is only one buyer for a product, and price discrimination. Gov. Tim Walz (D) signed a bill last year that gave the attorney general more authority in cases where health systems are trying to merge.
“There’s a feeling that we got carried away with [consolidation] and now the chickens are coming home to roost,” said Rep. Steve Elkins (D), a sponsor of two antitrust bills.
In 2022, California lawmakers tasked a commission with studying ways to overhaul the state’s 117-year-old antitrust law, including whether California should have a specific antitrust law aimed at tech companies. It is a multi-year undertaking that has drawn hundreds of comments from an array of industry groups, civil society organizations and others.
“We want to position California as the state vanguard for checking consolidated corporate power that stifles competition,” said Teri Olle, director at Economic Security California, which works on antimonopoly policy.
Backers of more robust antitrust enforcement point to polling showing broad public concern over corporate consolidation. Industry groups counter that current antitrust enforcement is adequate and that federal laws are sufficient.
“States expanding their antitrust powers would be both redundant and chaotic,” Dan Nguyen of the Information Technology & Innovation Foundation wrote in a June commentary.
The App Association warned in an April letter to state attorneys general that some of the recommendations under consideration in California “could snap the true backbone of entrepreneurship.”
Even if states are successful in revamping their antitrust laws, winning cases will not be easy, said Eleanor Fox, a professor emerita of trade regulation at New York University.
Fox said the current U.S. Supreme Court takes a conservative position on antitrust enforcement and could limit the reach of states in cases that involve significant interstate commerce.
“If states win big under state law … the courts are going to focus on how much jurisdiction [they] have to affect competition outside of their jurisdiction,” Fox said. “That’s the next frontier.”