Sharply heightened attention is currently being paid to antitrust enforcement at the state level. In 1976, Congress appropriated approximately $30,000,000 in federal funds to the states for the maintenance of antitrust actions and other programs. A fertile field is being made available for the expenditure of these funds by the focus of the federal antitrust enforcement agencies on the larger structural cases with a corresponding decline in enforcement actions against "routine" practices. In this climate, the opportunities for state actions are extremely favorable, especially in light of the generally high political marks to be achieved by state Attorneys General, who are typically elected officials, in the commencement of antitrust suits. As stated by Stephen J. Greenvogel, Massachusetts' antitrust division chief, "It looks good for an AG to say he's suing this company or that company on antitrust grounds." Not every state, however, has a fully developed antitrust statute to provide the framework for the intensified state enforcement program. Legislatures are acting to fill the void. The most ambitious and comprehensive action in this regard was the adoption by West Virginia of an all-inclusive antitrust act in 1978. At first blush from the defendant's standpoint, it is difficult to view the new West Virginia Antitrust Act with overwhelming enthusiasm. The Act basically follows the outlines of federal law while resolving most open questions in favor of the government or private plaintiff. Nevertheless, in part because of the parallel to federal law, and the incorporation of federal decisional law under section 16 of the new Act, there are numerous opportunities for all parties to take some comfort from the provisions of the statute. Several objectives manifest themselves in the new Antitrust Act. First, there appears to be an attempt not merely to track the substantive provisions of the Sherman Act but also to clarify its specific applications. Second, the West Virginia Antitrust Act seeks to provide the Antitrust Division with strong investigatory and enforcement powers, also patterned after, but diverging from, federal provisions. Finally, the Act is far more plaintiff-oriented than federal law in its provision for parens patriae actions by the Attorney General on behalf of citizens or residents of the state. Substantial unresolved questions lurk beneath each of these statutory objectives, however, and the courts will undoubtedly be required to make major decisions in the near future which will give shape to the new Act and possibly stimulate further legislative modifications. An examination of the provisions of this Act is instructive not only for its application to practices in or affecting West Virginia but also for the pattern it may set for the legislative actions of other states. This analysis, while attempting to provide a general overview, is designed to anticipate and discuss some questions which might occur to defense counsel in attempting to deal with the new statute.
James F. Rill,
The New West Virginia Antitrust Act from the Defense Perspective,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol81/iss2/3