As courts, Congress, the Department of Justice, and the Federal Trade Commission consider foundational issues of antitrust law and enforcement, states should take this opportunity to reassess their role in the antitrust ecosystem. Over the years, states have filed significant antitrust lawsuits, on their own and in conjunction with federal agencies. Today, states are bringing several substantial lawsuits against the nation’s largest technology companies that, if successful, could reorder the entire industry. All this activity, however, leaves open the question of whether states should play a leading role in antitrust enforcement. Are the states winning in court? Are their lawsuits helping consumers? How much value can states add when both the Federal Trade Commission and Department of Justice have divisions dedicated to antitrust enforcement?
States can also provide a useful check on overly aggressive federal enforcement by providing courts with a traditional perspective on antitrust law — a role that could become even more important as federal agencies aggressively seek to expand their powers. All of these are important roles for states to play in antitrust enforcement, and translate into positive outcomes that directly benefit consumers.
Conversely, when states bring significant, novel antitrust lawsuits on their own, they don’t tend to benefit either consumers or constituents. These novel cases often move resources away from where they might be used more effectively, and states usually lose (as with the recent dismissal with prejudice of a state case against Facebook). Through more strategic antitrust engagement, with a focus on what states can do well and where they can make a positive difference in antitrust enforcement, states would best serve the interests of their consumers, constituents, and taxpayers.