Unlike its federal brethren at the U.S. Justice Department, the Pennsylvania Office of Attorney General (OAG) is limited in its ability to fight anticompetitive conduct in Pennsylvania’s marketplace. The OAG has tried in vain for years to get Pennsylvania to adopt the full measure of antitrust protections codified under federal law, both through unsuccessful attempts at legislation and in the courts through the attempted creation of antitrust common law.

Most recently, in Anadarko Petroleum v. Commonwealth, — A.3d —, 2019 No. 60 C.D. (March 15), the Commonwealth Court held that the OAG’s power to regulate anticompetitive conduct is limited to the specifically enumerated definitions of “unfair methods of competition” and “unfair or deceptive acts or practices” contained in the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. Section 201-2(4)(i)-(xx). The court further held that these definitions do not include the power to regulate monopolistic behavior or market-sharing agreements under the UTPCPL’s catch-all provision prohibiting “any other fraudulent or deceptive conduct that creates a likelihood of confusion or of misunderstanding.” However, the Commonwealth Court also opined that the OAG’s power to adopt “such rules and regulations as may be necessary for the enforcement and administration” of the UTPCPL would allow for the regulatory expansion of the UTPCPL to include anticompetitive conduct not specifically prohibited by statute.

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