US Merger: A modest proposal for Comity to apply in Federal/State merger enforcement review

In the United States, Federal and State antitrust authorities have concurrent jurisdiction over merger enforcement. Such overlapping authority is not only inefficient, but can result in conflicting results. The comity principles used in international matters could similary be adopted to address Federal State jurisdiction matters.

1. Dr. C. Scott Hemphill, the Chief of the Antitrust Bureau in the Office of the New York State Attorney General, recently spoke regarding the role state attorneys general should play in antitrust enforcement. Although the concept of concurrent merger review by both the federal (Federal Trade Commission (“FTC”) or the Antitrust Division of the U.S. Department of Justice (“DOJ”)), and state attorneys general may seem odd to practitioners outside of the United States, it is a fact of life for U.S. lawyers. For instance, in two recent transactions in which the DOJ took enforcement action, the State of New York also was a plaintiff: (1) AT&T/TMobile; [1] and (2) Verizon Communications Inc./Comcast Corporation. [2] 2. One could question why, in these mergers among national providers,

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