The Three-Legged Stool of U.S. Antitrust Enforcement: A Conversation with Michael Kades

In this episode of Ruled by Reason, AAI President Randy Stutz talks with antitrust thought leader Michael Kades about the latest developments at the intersection of federal, state and private antitrust enforcement.

The conversation begins with a discussion of the strengths and weaknesses of federal, state and private enforcers in the current enforcement climate (5:11). It then moves to the promise of "public entity litigation," in which private counsel represent federal, state or local government entities in bringing enforcement actions they lack the resources to bring on their own (8:45).

Stutz and Kades then discuss strategic complexities and possible "force multipliers" when private counsel represent a governmental agency (11:31), including with respect to bringing cases where the agency's main priority is to develop antitrust doctrine or to shift risk when high-reward cases require large upfront resource commitments (13:33). They also discuss federal claims under Section 4A of the Clayton Act, which allows the government to recover treble damages in its capacity as an injured purchaser, and why such claims may be under-utilized (16:10).

The conversation then shifts to merger enforcement, with a focus on the role of states and private plaintiffs (20:22). Among other things, Kades identifies categories of mergers where states may have an added advantage in merger enforcement (25:14). He also discusses how policy preferences and subject-matter emphases at the federal level can spur state and private enforcers to fill gaps in federal attention, though he cautions against trying to deduce policy preferences and attention levels solely from counting statistics (29:48).

The conversation concludes with a discussion of allegations that federal enforcement has become "politicized" during the Biden and Trump administrations, and the role of the states in diffusing certain criticisms (33:13).