Thursday, November 22, 2012

The State of State-Federal Cooperation at the Antitrust Division: A View from the Front Row

Posted by D. Daniel Sokol

Mark Tobey (DOJ) discusses The State of State-Federal Cooperation at the Antitrust Division: A View from the Front Row.

ABSTRACT: Under the leadership of former Assistant Attorney General ("AAG") Christine Varney and Acting Assistant Attorneys General Sharis Pozen and Joseph Wayland, the U.S. Department of Justice Antitrust Division has renewed and expanded federal-state partnerships that are essential to many of the division's accomplishments. As AAG Varney stated in an early speech to the state Attorney General ("AG") antitrust community, the division is prepared to work "hand-in-glove with our partners in State Attorney General Offices." For my part, having worked more than 20 years as a state antitrust enforcer at the Texas Attorney General's Office before coming to Washington, I know first-hand that effective federal-state coordination, like we have, does not happen accidently. In truth, it cannot occur without open communication, constant nurturing, and a large measure of mutual good will.

Of course, the focus on the importance of cooperation is not new for the Antitrust Division. Earlier this year, when the former AAG for Antitrust James Rill received the Department of Justice's ("DOJ's") John Sherman Award for lifetime accomplishment in antitrust, much of the praise was for Rill's contribution to the development of international cooperation mechanisms in antitrust law and publication of the first joint Department of Justice/Federal Trade Commission ("DOJ/FTC") horizontal merger guidelines. In his acceptance speech, Rill took pains to emphasize another important accomplishment: His work in the late 1980s and early 1990s developing protocols and mechanisms to promote federal-state cooperation in mergers, such as the National Association of Attorneys General ("NAAG") Voluntary Pre-Merger Disclosure Compact ("NAAG Merger Compact") and the Executive Working Group on Antitrust ("EWG-A").

Rill's emphasis was not misplaced and has been carried forward most recently by former AAG Varney and her successors Acting AAGs Sharis Pozen and Joseph Wayland. Today, effective federal-state cooperation is a given fact-of-life in the antitrust universe, integrally, and permanently woven into the fabric of antitrust enforcement.

The record of cooperation in antitrust between the states and the DOJ over the past three years illustrates the prescience of AAG Varney's words. It also demonstrates the importance and continuing vitality of the federal-state partnership. Many of the Antitrust Division's hardest won accomplishments during this time have been forged with the help of the states.

Having served for the past three years as Special Counsel for State Relations and Agriculture at the Antitrust Division, I am honored to offer my perspectives on the state of state-federal relations from my current position in the division. My view is that the record of the past three years is testament to, and the result of, a strong commitment from both the state AGs and the division to make the partnership work as well as it can for the benefit of competition and the American consumer.

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