Font Size:

It was a conference that sometimes felt more like a summit meeting.

Sure there were panel discussions and CLE forms. But the purpose wasn't merely—or even primarily—to update the audience on antitrust law. The true aim was to bring together state and federal regulators from agencies that had once worked together but saw relationships fray during the administration of George W. Bush.

The stars on the first panel Wednesday morning were Christine Varney, the Department of Justice's assistant AG in charge of the antitrust division; Jon Leibowitz, the chairman of the Federal Trade Commission; and Ohio Attorney General Richard Cordray, co-chair of the National Association of Attorneys General (NAAG) antitrust committee. But the people at the microphone went out of their way to acknowledge the lawyers in the audience. Varney and Leibowitz had brought their top lawyers with them, and Cordray was joined by AGs Bill Mims (Virginia), Bill Sorrell (Vermont), Greg Zoeller (Indiana), and more than two dozen assistant and deputy AGs.

And it wasn’t for show. Only Wednesday morning’s session was open to the press. The conference, which was held at Columbia University, began on Tuesday when lawyers from the AGs offices met privately. They were joined for dinner by Varney, Leibowitz, and some of their people, many of whom lingered for informal conversations, according to James Tierney, director of the Columbia Law School State Attorneys General Program, which co-sponsored the conference with NAAG. After Wednesday morning’s session, the conference continued with a private lunch for regulators only, followed by afternoon panels to which the media weren’t invited.

"This is a time of renewed consensus," Tierney declared Wednesday morning. Virtually every speaker during the three-hour session affirmed that sentiment.

Varney told the audience that DOJ had already ushered in a new era of cooperation. "Over the last nine months, the department has initiated several programs to work actively with state attorney general offices on a whole host of issues," she said, "from mortgage fraud, to information sharing, to financial crime." To facilitate her division's work with the states, she recently hired Mark Tobey from the Texas AG's office as special counsel for state relations and agriculture, she said.

Also See: Full Transcript of Varney's Speech

Also See: FTC Breaks Up Virginia Hospital Deal (from Legal Times)

Next up was Leibowitz. "There's no doubt that consumers benefit when we pool our talents," he said. The commission had just reached a settlement, he announced, in a case it had brought against Carilion Clinic, the dominant hospital system in southwest Virginia. The clinic had acquired two outpatient centers in 2008; under the settlement it has three months to sell them. "It's very hard to win a merger case in a state if you don't have the support of the state attorney general," Leibowitz observed.

Ohio's AG, a five-time winner on the television game show Jeopardy, began with a history lesson. The famed Standard Oil antitrust case began, years before it reached the U.S. Supreme Court, as a lawsuit brought by the Ohio attorney general, Cordray noted. "States are laboratories for good and ill," he said. They're also "backstops against federal abdication." States need to be aggressive in providing the feds with information about local markets, he added, but they shouldn't expect their counterparts to join them every time.

The moderator of this session was Stephen Houck, of counsel at Menaker & Hermann in New York. Houck was involved in the Microsoft lawsuit, and still represents a group of states as enforcement counsel. In an article that was included in the conference materials, he described the deterioration of relations between the AGs and, in particular, DOJ. "Microsoft is a good barometer," he wrote. "In 2007, DOJ allowed most of the final judgment to lapse in one of its signature antitrust victories and joined its prior adversary Microsoft in an unsuccessful effort to defeat the states' motion to extend the term of their final judgment."

During the question and answer session, amid the spirit of bonhomie that pervaded the entire conference, Houck summed up for anyone who had missed the message. "The welcome mat is out," he said.

Also See: At NYC Confab, Antitrust Regulators Meet the Age of Aquarius

Also See: The State of Antitrust Enforcement (pdf)

Subscribe to Corporate Counsel