Attorney General James Leads Multistate Coalition to Support DOJ and FTC’s Revised Merger Guidelines

 

AG James and Multistate Coalition Say Revised Federal Merger Guidelines Will Help Protect Workers and Consumers

New York Attorney General Letitia James led two multistate coalitions in submitting comments to support the U.S. Department of Justice (DOJ) and the Federal Trade Commission’s (FTC) proposed revisions to strengthen the Merger Guidelines, which are the standards that DOJ and FTC use when determining whether corporate mergers and acquisitions violate antitrust laws. In their comments, both coalitions write that the revised merger guidelines will protect workers, strengthen state enforcement of antitrust laws, and combat the concentration of corporate power.

“In recent years, consumers and workers have had fewer options when choosing where to work or buy goods and services because companies have gotten larger and more powerful,” said Attorney General James. “I applaud DOJ and FTC for proposing these revised guidelines that will bolster merger enforcement to protect workers and consumers. These new guidelines will help New York and other states stop anticompetitive mergers. A healthy economy is one where consumers and workers have options, and my office will continue to work with our state and federal partners to make that possible.”

The Merger Guidelines are not only a guide for federal and state enforcers and companies considering mergers but have also been treated by the courts as persuasive authority on merger law. New York and many other states have strong track records in merger enforcement, whether by joining forces with federal counterparts, acting individually, or acting as a group with other states. The multistate comments draw upon the states’ track record in protecting their residents and economies from anticompetitive harms.

In their comments, the coalition notes that the revised Merger Guidelines reflect current economic changes and the realities of the modern economy, including how to regulate digital platform mergers while also reaffirming foundational principles of antitrust law. The comments support DOJ and FTC’s efforts to simultaneously reinvigorate merger enforcement and support Congress’s longstanding mandates that enforcers work to protect competition.

In the first set of comments, the states support DOJ and FTC’s classification of a broader spectrum of mergers as presumptively anticompetitive and their raising the standards of proof required for defenses raised by the merging parties. The coalition also suggests clarifying certain passages in the Guidelines or providing more detailed discussions of the legal and evidentiary standards that FTC and DOJ are planning to apply to facilitate better understanding by merging parties, enforcers, and the general public.

The second set of comments supports DOJ and FTC’s decision to expressly state that antitrust laws protect competition in labor markets, which will help protect workers’ wages especially in rural markets and in concentrated industries like healthcare. The coalition also writes in support of the agencies’ new guidelines to examine not only the merging firms’ power to affect wages, but also their ability to impact workers’ benefits and working conditions.

Joining Attorney General James in submitting both sets of comments are the attorneys general of Arizona, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Jersey, Oregon, Pennsylvania, Washington, Wisconsin, the District of Columbia, and the U.S. Virgin Islands. The attorneys general of Delaware, Hawaii, Minnesota, and Rhode Island also joined in the general comments in support of the revised guidelines.