All Eyes on Pennsylvania – State Antitrust Bill Also at Stake in the 2024 Election

Pennsylvania has been front and center in coverage of the 2024 election cycle. But it is not only the next President that the citizens of the Commonwealth may effectively decide. Pennsylvania is the only remaining U.S. jurisdiction that does not have its own state-level antitrust law, and that may soon change depending on the results of the 2024 election for control of the Pennsylvania Legislature.

The Pennsylvania Open Markets Act (the Bill) has passed the Democratic-controlled Pennsylvania House of Representatives, largely along party lines, and has been assigned to the Judiciary Committee in the Republican-controlled State Senate, where it has languished for several months. The future of the Bill depends on whether the Democratic party can pick up enough seats in the Pennsylvania State Senate (and hold on to the House of Representatives). It is very likely that a unified Democratic state government would act swiftly to pass the Bill without further amendment; however, Republican control of the State Senate would almost certainly mean further revisions narrowing the Bill or simply a refusal to advance the Bill any further.

Broadly, the Bill is drafted consistent with federal antitrust law, creating three categories of prohibitions: (1) restraints of trade, (2) monopolization or attempted monopolization, and (3) certain acquisitions that may cause harm to competition. The first two categories closely mirror Sections 1 and 2 of the Sherman Act, and the third category closely mirrors Section 7 of the Clayton Act. Violations are remediable by right of private action, with mandatory trebled damages. The Bill would also criminalize restraints of trade and monopolization - which also closely mirrors federal law. Finally, the Bill would add a state-level premerger notification requirement, mandating that merging parties transacting business in Pennsylvania provide the state's Office of the Attorney General with a copy of the federal Hart-Scott-Rodino notification, and includes additional reporting requirements for transactions in the healthcare space.

The results of the state legislative races in Pennsylvania over the coming days will likely be outcome-determinative for the future of the Bill. Will Pennsylvania join the 49 other states and enact its own antitrust law? In recent years, state antitrust enforcement has intensified from coast to coast, complicating the defense of antitrust litigation and antitrust investigations for many businesses. Stay tuned.