Edited by Albert A. Foer and Jonathan W. Cuneo
Chapter 13: Interaction of Public and Private Enforcement
Kevin J. O’Connor, Hannah L. Renfro and Adam C. Briggs1 Introduction One of the unique features of the American system of antitrust enforcement is the multiplicity of potential plaintiffs, governmental and private, authorized to challenge allegedly unlawful conduct under federal and state antitrust law.2 Not only do the United States Department of Justice (DOJ) and Federal Trade Commission (FTC) maintain overlapping antitrust enforcement authority,3 but other federal agencies also possess the authority to block business transactions in certain industrial sectors.4 In addition, state attorneys general and private plaintiffs are empowered to sue under federal and state antitrust law. Although similar to their federal equivalent, state antitrust laws often present potential plaintiffs with remedies beyond those obtainable under federal law.5 In short, the United States antitrust enforcement system has evolved into a system including multiple enforcers, each possessing concurrent enforcement authority: two federal antitrust agencies, other federal agencies reviewing industry-specific transactions, fifty state attorneys general, and thousands of private parties. However, except for certain non-antitrust federal agencies, all federal litigants operate in an integrated federal court system under a single body of federal precedent.6 Even most state antitrust laws 1 Kevin J. O’Connor is a shareholder with Godfrey & Kahn, S.C., and chairs the firm’s Antitrust and Trade Regulation Practice Group. Before joining Godfrey & Kahn, O’Connor headed the Wisconsin Department of Justice’s Office of Consumer Protection and Antitrust. While an Assistant Attorney General in Wisconsin DOJ, O’Connor also chaired the National Association of Attorneys General’s Multistate Antitrust Task Force. He has...
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