Old, Not Odd: Running Laches Against the States and the Future of Antitrust After New York v. Meta Platforms

Frank Schulze* October, 2024

In New York v. Meta Platforms, Inc., the United States Court of Appeals for the D.C. Circuit applied equitable laches to an antitrust lawsuit brought by forty-six state attorneys general, holding that they had not brought their claims in their role as law enforcers. Meta Platforms is the latest in a line of cases that has characterized antitrust actions by state attorneys general as non-public and non-governmental. But this characterization is in tension with the historical role of state attorneys general in enforcing the antitrust laws and undermines the original design of the federal antitrust statutes as supplements to state enforcement activities. This Note argues that state antitrust enforcement is an insurance policy against federal underenforcement and a mechanism to reflect the popular will. The Meta Platforms decision observed that the status of the states as plaintiffs independently factors into the court’s laches analysis. This observation—which this Note calls “the states factor”—suggests that all else equal, a suit brought by the states to vindicate a quasi-sovereign interest on behalf of its citizens is less likely to be stale than a similar one from a purely private actor. If courts afford limited weight to the “states factor” and run laches against elected antitrust enforcers, they make the federal statutes less efficient for their original purpose of supplementing state enforcement activity.

Introduction

Long before there were national antitrust laws, state attorneys general aggressively pursued suspected monopolists that operated within their borders.¹ They are the only antitrust enforcers elected by voters—throughout history, that status has traditionally come with a mandate to pursue aggressive, populist agendas.² State attorneys general have even stood in for the federal government during presidential administrations where federal enforcement was lackluster.³

In late 2020, forty-six states and two territories joined together and sued Meta Platforms—formerly known as Facebook—for violations of federal antitrust laws, including section 7 of the Clayton Act.⁴ The action garnered the attention of the national press.⁵ The presence of so many states—with both Democrat and Republican attorneys general—as plaintiffs was a unified statement that reflected bipartisan demands for increased antitrust enforcement.⁶ However, when the D.C. Circuit affirmed the dismissal of the suit, which had become New York v. Meta Platforms, Inc.,⁷ it laid bare the limitations of state antitrust enforcement. To pursue injunctions in federal court, state attorneys general, like those suing in Meta Platforms, rely on a standard private right of action in the antitrust laws that is available to “any person, firm, corporation, or association.”⁸ Characterizing the case as one of private plaintiffs bringing a claim too late, the D.C. Circuit upheld the dismissal of the claim for laches, a common law doctrine that empowers judges to furnish a statute of limitations where one does not exist.⁹ And with that, a purportedly significant case against a defendant with national notoriety was swept out of court before it ever reached the merits.

Meta Platforms has much broader implications for the existing antitrust enforcement system than its narrow laches ruling would suggest. Laches is an equitable doctrine that turns on the discretion of judges.¹⁰ In his laches analysis, D.C. District Court Judge James E. Boasberg conceded that it weighed in the plaintiffs’ favor that they were states trying to vindicate a quasi-sovereign interest instead of pure private parties.¹¹ This Note calls this observation, which acknowledges the historical role of state antitrust enforcement, the “states factor.” The “states factor” wasn’t enough to carry the day for the Meta Platforms plaintiffs, but another court cited Judge Boasberg’s observation about the significance of state plaintiffs for the proposition that their existence can impact discretionary rulings.¹² After Meta Platforms, the potency of the “states factor” is unclear. State antitrust suits are supposedly private in character but are also somehow different from purely commercial suits.

Part I of this Note introduces the federal antitrust statutes and details the historical role of state attorneys general in their enforcement. State attorneys general were the first antitrust enforcers and, throughout their history, their activities have surged and receded in relation to their federal counterparts. Over time, these shifting tides have arrived at an equilibrium. Part II explains Meta Platforms and contextualizes its laches holding in the broader context of antitrust jurisprudence. It concludes that Meta Platforms and its progeny leave room for federal courts to properly weigh the important role of the states via the “states factor.” Finally, Part III discusses the potential impacts of Meta Platforms, including whether the laches time-bar will spur divergence between state and federal antitrust enforcement.

I. The Role of the States as Antitrust Enforcers

A. Federal Antitrust Enforcement: A Primer

The federal antitrust statutes, which are just over a century old,¹³ aim to promote fair competition and prevent anticompetitive practices in the marketplace.¹⁴ They authorize suits for both monetary and injunctive relief.¹⁵ Actions for monetary relief are subject to a four-year statute of limitations, and damages are automatically trebled if plaintiffs are successful.¹⁶ The potential cost of an adverse judgment is so great that many defendants reflexively settle the moment trial appears likely.¹⁷

Antitrust injunctions are potent, too. Instead of assigning liability to one firm, they can affect the competitive landscape of entire industries by altering the size and composition of key players. Furthermore, they are very flexible.¹⁸ Historically, courts have utilized their equitable powers to redress injuries to competition.¹⁹ Courts can force firms to sell off parts of themselves (called “divestiture”), enjoin specific conduct or procedures, stop an impending merger of two firms, compel disgorgement of ill-gotten gains, and order other equitable remedies.²⁰ Public and private enforcers can each seek both injunctive and monetary relief, but generally, equitable relief is more readily available to government enforcers.²¹ For these reasons, this Note’s primary focus is injunctive relief under the antitrust laws.

Understanding the states’ role in enforcing the federal antitrust statutes requires some background on enforcement. Two federal agencies split responsibility for enforcing the antitrust laws: the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) (hereinafter referenced interchangeably as “the Agencies”).²² The Agencies are most advantaged when it comes to enjoining mergers between two firms before they close.²³ This exercise is inherently predictive.²⁴ The Hart–Scott–Rodino Antitrust Improvements Act of 1976 (HSR Act) assists enforcement by requiring parties to a merger to disclose key documents to the Agencies before their merger closes if the transaction exceeds a certain dollar amount.²⁵ Filings pursuant to the HSR Act contain a host of documents and sensitive information about the merging companies to help regulators assess whether their combination might “substantially lessen competition or tend to create a monopoly.”²⁶ The Agencies have a waiting period to decide whether they want to bring a civil injunctive suit to block the merger.²⁷ Even if they decide to take no action at the consummation of the merger, the government retains the right to unwind it later.²⁸

State attorneys general can also enjoin a merger before it closes, but they are subject to more limitations. State attorneys general can only review filings prepared for HSR Act review with the merging companies’ consent.²⁹ Even if companies do not consent and, instead, choose to tightly hold onto these documents, state attorneys general can still obtain them for their own suits with the brute force of a subpoena.³⁰ Rather than risk this outcome, companies frequently permit interested states to take part in the Agencies’ review of the merger—but they are not required to.³¹

These limitations aside, state attorneys general have distinct responsibilities and powers as antitrust enforcers. They bring federal antitrust suits either on behalf of their citizens or as the state itself as a proprietary buyer of goods and services.³² The attorneys general are also the only plaintiffs permitted to distribute monetary antitrust recoveries directly to citizens.³³ Furthermore, if the DOJ discovers that a state may have a cause of action under the antitrust laws in the course of its own investigation, it is required to notify the pertinent state attorney general and share “any investigative files or other materials” that might be relevant to the claim.³⁴ Finally, antitrust actions by state attorneys general are immune from consolidation on multidistrict litigation (MDL) panels and must remain in the federal forum of the states’ choice for pretrial purposes.³⁵ Congress established this rule specifically to give states a “homefield advantage” that defendants cannot forestall with a request for consolidation.³⁶

In addition to the states and the Agencies, private parties are permitted to enforce the federal antitrust laws. The statutes authorize private action by “[a]ny person, firm, corporation, or association” for injunctive or monetary relief against “threatened loss or damage by a violation of the antitrust laws.”³⁷ These private suits serve an important role in developing the common law of antitrust, since this body of law is based on very little statutory language.³⁸ Private parties are rarely successful at securing injunctive relief, but it can happen.³⁹

B. The History of Antitrust Enforcement by State Attorneys General

State enforcement of the antitrust laws fluctuates like tides. At various times throughout history, states have ceded antitrust enforcement power to the Agencies, only to resurge decades later and again claim a more dominant role. Before this give and take, the states were the only antitrust enforcers.⁴⁰ Prior to the enactment of the Sherman Antitrust Act in 1890, states policed the size of corporations through state corporate law.⁴¹ At the time, state corporate law exerted significant control over what firms could do and how they could organize themselves.⁴² If a corporation violated its state-issued charter, state attorneys general would file quo warranto suits to revoke them.⁴³ Over time, developments in state corporate law limited their effectiveness as a tool to manage corporate mergers, prompting states to enact antitrust statutes that directly confronted economic conduct instead of only charter violations.⁴⁴ Before the first federal antitrust statute, at least thirteen states had enacted their own.⁴⁵

Even when Congress enacted the first federal antitrust statute, legislators widely expected that states would continue taking the lead on antitrust enforcement, with the federal statute serving as only a supplement.⁴⁶ On the eve of the twentieth century, state enforcement activity was so vigorous that some argued federal legislation was altogether unnecessary to address the trust problem.⁴⁷ It is telling that states were the trailblazers for the crowning achievement of the federal antitrust statutes: the breakup of Standard Oil. By the early 1900s, state antitrust enforcers in Missouri, Ohio, Texas, and Kansas were working together to break up the oil trust.⁴⁸ Their joint investigation against the firm came in response to popular agitation and directly preceded the federal government’s own action against Standard—the action that would eventually break up the company.⁴⁹

Despite the stature of the states in antitrust enforcement at the beginning of the twentieth century, their participation in these matters unexpectedly receded to its lowest ebb in the years that followed the federal statutes’ passage.⁵⁰ Many of the still-existing state-level statutes were not vigorously enforced in the early 1900s, due in part to reduced staffing capacity and resources.⁵¹ The rise of federal enforcement activity also played a role in reducing state activity.⁵² For much of the twentieth century, federal enforcers were not just dominant; they were alone. By 1961, state enforcement of local antitrust statutes was “virtually dead.”⁵³

In the early 1970s, the tide turned again. The consumer movement took hold in the United States, and state attorneys general started viewing recoveries from price-fixing suits as a way to raise their political profiles.⁵⁴ Unlike their early twentieth-century counterparts, these attorneys general were less interested in securing injunctions that altered the competitive landscape of the economy.⁵⁵ Instead, they focused on using the antitrust statutes to secure monetary relief against alleged cartels.⁵⁶

Congress took the drastic step of formalizing and encouraging the 1970s resurgence of state activity with two federal statutes: the HSR Act and the Crime Control Act of 1976.⁵⁷ Faced with an increasing workload and rising inflation, the federal government needed additional capacity to enforce the antitrust laws and found a willing partner in the states.⁵⁸ So, in 1976, Congress passed the HSR Act.⁵⁹ In addition to the premerger notification program discussed in Section I.A, the HSR Act also explicitly authorized state attorneys general to bring parens patriae actions on behalf of their citizens, under the federal antitrust statutes.⁶⁰ Parens patriae is a procedural device that makes it easier for attorneys general to satisfy Article III’s standing requirement.⁶¹

Congress’s other move to formalize the state resurgence was enacting the Crime Control Act of 1976. This legislation appropriated up to $10 million per year for state attorneys general to develop antitrust divisions within their offices.⁶² Altogether, this crime bill subsidized antitrust enforcement efforts in forty-five states, and twenty-five of them used the funds to establish an antitrust enforcement unit for the very first time.⁶³ These grants funded the offices for three years,⁶⁴ and some states took steps to fund their divisions when the federal funding expired.⁶⁵ Throughout the 1970s and early 1980s, states recovered from their yearslong drought and made antitrust a staple of their legal activities.⁶⁶

By the late 1980s, the tide had officially turned, and state antitrust was dominant again. The federal government reduced its enforcement activity during the Reagan Administration, which ultimately fueled state activity.⁶⁷ Within a year of taking office, William Baxter—President Reagan’s choice to lead the Antitrust Division of the DOJ—began telegraphing to the business community that he would ignore Supreme Court precedent and decline to challenge mergers that would have previously been considered unlawful.⁶⁸ Baxter’s lax approach to enforcement kicked off a wave of corporate merger activity in the 1980s.⁶⁹ But state enforcers saw the vacuum and stepped up to fill it, initiating more cases during the Reagan Administration than they had in years prior.⁷⁰ They had fewer resources than the Agencies did to make the empirical case against a merger in court but nonetheless increased the number of merger actions they filed throughout the decade.⁷¹ During the last year of the Reagan Administration, the states collectively filed more merger challenges than the DOJ.⁷²

The states’ resurgence in the 1980s was probably the height of their power and influence as independent antitrust enforcers.⁷³ In 1987, the states published a set of Horizontal Merger Guidelines (1987 Guidelines) explicitly designed to propose an alternative enforcement policy to that of the Reagan Administration.⁷⁴ At the time, this was a stunning rebuke of the federal government’s approach to antitrust by directly elected state officials. The defense bar criticized the states’ 1987 Guidelines for turning antitrust into a patchwork of enforcement regimes that created more confusion for merging companies,⁷⁵ but they also empowered the states to act as a fail-safe against underenforcement by federal officials.⁷⁶ Not long after they promulgated their 1987 Guidelines, state enforcers received a vaunted seat at the Antitrust Section of the American Bar Association’s Spring Meeting, marking the renewed relevance of the states.⁷⁷

Perhaps in response to the unprecedented strength of state power, state enforcement again ebbed in the 1990s and has mostly stayed at a level commensurate with federal enforcement ever since. The states revised their 1987 Guidelines multiple times throughout the end of the 1980s and early 1990s, but each new iteration looked more and more like its counterpart executive approach.⁷⁸ In the modern era, state and federal enforcers do not view each other as rivals, but as partners.⁷⁹ The federal government almost never permits joinder of other parties to its injunctive suits, but the states in antitrust suits are a notable exception.⁸⁰

The federal-state equilibrium experienced one notable ripple in the early 2000s: the Microsoft litigation. In 1998, the Clinton Administration sued for an injunction against Microsoft, asking the federal courts to break up the software giant.⁸¹ Nineteen states brought their own lawsuits, which were consolidated with the DOJ’s case.⁸² The fleet of states and the DOJ were initially victorious when the D.C. Circuit reached a judgment against Microsoft, but the litigation proceeded to the remedy phase just as the second Bush Administration took over.⁸³ The Bush Administration quickly settled with Microsoft, and ten states accepted the Bush DOJ’s remedy.⁸⁴ Nine other states flexed their power as independent enforcers and continued to litigate for a stricter remedy, extending the matter well into the 2000s, but also notching key victories through their persistence.⁸⁵ By the end of the second Bush Administration, the relationship between the states and the federal Agencies had again reached a nadir.⁸⁶

Although the state and federal approaches were generally aligned, state enforcement continued to operate as a fail-safe against federal nonenforcement through the early 2000s.⁸⁷ Critics of state involvement have long worried that state attorneys general have local interests and political motivations that counsel against allowing them to exert too much influence over national firms. This concern is particularly salient when a state objects by itself to a merger between firms that operate in national markets, since such actions have national implications.⁸⁸ However, between 2000 and 2020, state attorneys general initiated only 3 percent of all merger challenges without the involvement of the Agencies.⁸⁹ Thus, the insurance policy against federal underenforcement that state attorneys general provide is vital, but modest.⁹⁰ The states’ role, then, should not radically change the expectations of merging firms.

C. Sprint and T-Mobile: A Modern Case Study of the States as Dissenters

Perhaps no anecdote better encapsulates the role of the states as a vehicle to compensate for the federal enforcement approach (or lack thereof) than their case against the 2019 merger of telecommunications giants Sprint and T-Mobile. The Trump Administration was considerably less interested in blocking the merger than expected.⁹¹ Earlier administrations’ threatening responses had deterred Sprint and T-Mobile’s merger attempts.⁹² In 2018, the firms tried their luck again.⁹³ The DOJ was assigned to review the merger for competitive concerns after it was announced.⁹⁴ This time, representatives from the merging firms made repeated entreaties to the Trump Administration that appeared to dissuade the Agencies from litigating the merger.⁹⁵ Critics at the time went as far as suggesting the Trump Administration’s lack of aggression against the merger was the product of a quid pro quo between the president and Sprint’s owner, who wanted to sell the firm but was struggling to find a willing buyer.⁹⁶

In lieu of a court challenge, the DOJ and the Federal Communications Commission (FCC) negotiated their own remedy with the firms. Rather than block the merger altogether, the DOJ asked Sprint and T-Mobile to divest some of their existing business lines and abide by a few contractual commitments that would bolster potential new entries into the market and supposedly preserve competition.⁹⁷ Sprint and T-Mobile were confident that their work with federal authorities had cleared the way for them to consummate their transaction without interruption.⁹⁸

Many states were not satisfied with the Trump Administration’s lackluster approach. For months, state attorneys general coordinated with federal authorities to review the investigative files pertaining to the merger.⁹⁹ The states ultimately reached a different conclusion than did the DOJ, and in the spring of 2019, ten state attorneys general filed suit in federal court to enjoin the merger.¹⁰⁰ The lawsuit swelled to eventually include thirteen state plaintiffs and Washington D.C.¹⁰¹ Despite their best efforts to avoid this outcome, Sprint and T-Mobile needed to prepare “battalions of the most skilled and highest-paid attorneys in the nation” to litigate their merger.¹⁰² Notwithstanding their momentum, the states lost their bid for a preliminary injunction and did not appeal.¹⁰³ The merger went forward. The combined entity made many promises to the DOJ to stave off a lawsuit, but all of these promises expire at some point.¹⁰⁴ Critics derided the outcome and lauded the states’ effort in the absence of federal involvement.¹⁰⁵

Continued state enforcement actions illustrate the value that directly elected officials add to the process. For example, Arizona Attorney General Kris Mayes signaled her intention to challenge the grocery merger between Kroger and Albertson’s before the Biden administration decided to file a challenge of its own.¹⁰⁶ Such state actions often reflect regional or political interests the Agencies do not share.¹⁰⁷ As the Sprint merger indicates, state coalitions may not always be successful, but they can guarantee that a regional or political constituency gets a chance to air its claims before a court when the Agencies are not interested in pursuing them.¹⁰⁸

New York v. Meta Platforms, Inc. is significant because it is probably the closest the federal courts have come to confronting the legal significance of the last century of state enforcement. On the surface, the case is about an esoteric limitations issue.¹⁰⁹ However, it also tees up much broader questions: When sovereign states are plaintiffs in antitrust actions, what are their litigation advantages relative to the Agencies? Does their historical role in litigating the monopoly problem hold any weight?

II. Legal Limitations on State Injunctive Actions

A. Overview of New York v. Meta Platforms, Inc. and the States’ Right of Action

Part I discusses the history of the states as antitrust enforcers and the evolution of their modern role. Part II evaluates New York v. Meta Platforms, Inc., a 2023 D.C. Circuit opinion that weighed states’ involvement in the course of making a discretionary laches ruling, and argues that the D.C. Circuit’s reasoning gives way to an alternate conclusion. In Meta Platforms, forty-six states, plus D.C. and Guam, sued the social networking giant, seeking to unwind its purchases of Instagram and WhatsApp.¹¹⁰ Critics occasionally characterize enforcement by state attorneys general as parochial and protective, but the coalition of states in Meta Platforms was not susceptible to that concern: It was broad and, thus, presumably represented a wide range of political and regional interests.¹¹¹

Not wanting to part with its crown jewels, Meta asserted the defense of laches against the states.¹¹² The antitrust statutes do not have a statute of limitations for injunctive relief,¹¹³ but defendants may ask a court to create a limitations period via equitable laches.¹¹⁴ In Meta Platforms, the states responded by arguing that their status as sovereigns made them immune to the defense of laches, just like the federal government.¹¹⁵ The states argued that the court needed to consider the privileges of a sovereign for the purposes of its discretionary laches ruling.¹¹⁶ They essentially asked the court to recognize the “states factor” as a basis for allowing their injunction to proceed to the merits despite their delay.

The D.C. Circuit sided with Meta, dismissing the states’ case and holding that states did not appear in federal court as sovereign governments when suing under the federal antitrust laws.¹¹⁷ As a strictly textual matter, this appears to be correct. The states use the Clayton Act’s general private right of action when they sue for injunctive or monetary relief because the statutes do not supply an independent basis for the states to bring suit.¹¹⁸ The Supreme Court clarified in Georgia v. Evans that states may rely on this generic private right of action because states constitute legal “person[s]” and can bring suit accordingly.¹¹⁹ But Evans was an example of a proprietary action filed by a state as a buyer and seller of goods, just like any other private claimant.¹²⁰ In Evans, Georgia alleged it had been overcharged for its purchases of asphalt to pave its roads.¹²¹ In this context, the state was a private contracting party suing a private defendant over a private transaction, relying on the Clayton Act’s private right of action.

Meta Platforms was more public in character, so the states relied on the parens patriae doctrine, not their market participation, to assert standing.¹²² Parens patriae, which literally means “parent of the country,” allows state attorneys general to bring suit on behalf of collective injuries to their citizens.¹²³ A parens patriae suit does not vindicate the private rights of the state as a buyer or seller. Instead, the state acts more like a lead plaintiff in a Rule 23 class action, aggregating the dispersed private claims of its injured citizens.¹²⁴ The federal courts created and affirmed the ability of state attorneys general to rely on this doctrine for injunctions during the twentieth century.¹²⁵ The HSR Act gave them the power to use it for damages suits in 1976.¹²⁶ Critically, parens patriae confers only standing; antitrust actions by state attorneys general still rely on the Clayton Act’s private right of action as the basis to bring suit.¹²⁷ As a result of the states’ source of standing, the trial court in Meta Platforms strained to characterize the injunction sought by forty-six states as a “private” suit under the statute.¹²⁸ It further held that states suing under the federal antitrust laws categorically do not appear in court as sovereign law enforcers and do not enjoy any litigation advantages as a sovereign.¹²⁹ The D.C. Circuit affirmed both of these textualist holdings.¹³⁰

B. The Mechanics of Equitable Laches in Federal Court

As a discretionary remedy, applying laches against the states was not inevitable. Laches is a judge-made equitable defense that has no textual basis in the antitrust statutes. The defense permits dismissal if the defendant can show (1) significant time has elapsed since the alleged wrong, and (2) they have been prejudiced by the plaintiff’s delay in bringing suit.¹³¹ In the modern era of statutes, nearly every right of action has a statute of limitations, so laches defenses are rare.¹³² Courts speculate that the Sherman and Clayton Acts’ drafters omitted a statute of limitations for injunctive suits because they assumed the federal judiciary would create one via laches.¹³³ For injunctive suits under these laws, the standard laches window for private plaintiffs is four years, which the courts borrow directly from the statute of limitations for damages actions.¹³⁴ The primary authority for this laches window is Phillip E. Areeda and Herbert Hovenkamp’s highly influential antitrust treatise.¹³⁵ The treatise justifies the four-year laches window for injunctions by arguing that borrowing a statute of limitations from another portion of the statute is standard practice.¹³⁶

However, when the United States is the plaintiff, defendants cannot assert equitable laches. As a result, the Agencies are free to bring injunctive suits against any entity that violates the federal antitrust laws, regardless of how much time has elapsed.¹³⁷ Because defendants would, effectively, be arguing for repose against a sovereign suing under its own laws, the sovereign’s immunity from laches has both logical and policy rationales.¹³⁸

First, sovereigns are responsible for such a wide range of activities that even the most vigilant government cannot pursue every violation of law in a timely manner.¹³⁹ Immunity from laches thus allows sovereigns to enforce their laws without missing a violation just because they lacked the resources to prosecute it in time.¹⁴⁰ Second, immunity from laches protects the public from negligent officers who fail to vindicate public rights in a timely fashion.¹⁴¹ Both of these rationales can plausibly apply to states suing under federal antitrust laws.¹⁴² State attorneys general are responsible for providing legal counsel to state agencies, ensuring public safety, protecting consumers, defending the state in lawsuits, safeguarding the environment, overseeing charitable organizations, controlling Medicaid fraud, and defending the constitutionality of state statutes, among other things. State officers can also be negligent and let rights go stale. In Meta Platforms, the states noted the sheer breadth of their responsibilities in support of their argument for a “states factor,” but the court was dismissive in response.¹⁴³ According to the court, private parties are also busy with “other matters” but lose their rights if they sleep on them, so the states should also be held to account for their delay.¹⁴⁴ “Other matters” is a misleading way to equate the responsibilities of every person to those of a state government.

In addition to undermining the rationales behind protecting sovereigns from laches, rigid application of laches to state antitrust claims is untethered from the legislative history of the federal statutes. As discussed in Part I, Congress enacted the federal antitrust statutes specifically to supplement state enforcement activity against anticompetitive enterprises in the era of Standard Oil.¹⁴⁵ The statutes were designed as “private attorney general” statutes, which rely on the potential for relief on the merits to deter future legal violations.¹⁴⁶ Laches, though, can make such an examination of the merits impossible, thus frustrating the goals of the antitrust statutes.¹⁴⁷ Admittedly, exposing defendants to every imaginable plaintiff without any grant of repose is not ideal, and courts must draw a line somewhere.¹⁴⁸ However, given the legislative history above,¹⁴⁹ a line that bars injunctive suits by the states under the federal statutes is more directly at odds with the intent of the Sherman Act than is a line barring only “purely” private suits.

Given the discretionary nature of laches, another court might have denied the defense, despite Meta’s claim of prejudicial delay, by acknowledging the states were acting in their sovereign capacity as civil enforcers instead of as mere parties to private disputes. After all, state governments are not competitors dredging up stale claims to gain a business advantage over defendants.¹⁵⁰ They have a traditional and important role in antitrust enforcement, and the antitrust statutes affirmatively refer to this role, even if the private-remedy provision does not specifically mention it. For example, the federal statutes single out state attorneys general by affording them parens patriae authority.¹⁵¹ They entitle state attorneys general to access certain relevant documents when federal agencies obtain them from defendants, regardless of whether their state is pursuing its own case.¹⁵² Moreover, state actions are exempt from consolidation on MDL panels, keeping the states on their home turf.¹⁵³ These advantages afford the states a sort of penumbral dignity and allow them to enforce the federal antitrust laws more effectively than any private party.¹⁵⁴ A defendant firm is not “prejudiced” because it avoids an enforcement action from its regulator over a significant stretch of time. The flexibility of laches can be adjusted to account for which enforcers are privileged by the statutes,¹⁵⁵ and the “states factor” could recharacterize an injunctive suit older than four years as an exercise in prosecutorial discretion.

In Meta Platforms, even the trial court conceded that the states’ role was relevant to the laches analysis. In dismissing the plaintiff-states’ injunctive requests at trial, Judge Boasberg wrote: “[T]he Court does not mean to suggest that the presence of state plaintiffs has zero effect on the analysis.”¹⁵⁶ Although the plaintiffs’ status as states failed to prevent dismissal in Meta Platforms, it seemed more important in a separate action brought by a fleet of mostly Republican state attorneys general against Google.¹⁵⁷ There, the court cited Judge Boasberg’s observations about the significance of plaintiff-states (in other words, the “states factor”), in part to deny Google’s request for a laches dismissal at the pleading stage.¹⁵⁸ The decision in Google reinforces the highly contextual balancing act courts have done in applying laches for centuries.¹⁵⁹

C. The “States Factor” and Flexible Approaches to Laches for Government Plaintiffs

The “states factor” matters, but how much? Meta Platforms did little to answer this question or simplify the case law. In total, five federal court decisions have grappled with the issue, directly or indirectly.¹⁶⁰ Three were decided in the last decade.¹⁶¹ The different rationales underlying each decision demonstrate that Meta Platforms was not a textual inevitability but was, at least in part, a value judgment made through the laches determination. The remainder of this Section examines the other cases in detail.

The first court to rule on applying laches to a state action was much more deferential to the plaintiff’s sovereign status than other courts have been. In Massachusetts v. Russell Stover Candies, Inc., the Commonwealth of Massachusetts sued the famed chocolatier in federal court for unlawful resale price maintenance and sought both damages and injunctive relief.¹⁶² The alleged conduct had occurred between two and eight years prior to the Commonwealth’s lawsuit.¹⁶³ Russell Stover raised laches in response.¹⁶⁴

In an opinion that heavily invoked Massachusetts’s status as an enforcer and a sovereign, the district court sided with the Commonwealth. Here, the “states factor” was critical: Because the state was attempting to vindicate the economic well-being of its citizens, laches was “no bar to a suit brought by the government.”¹⁶⁵ This was particularly true because the plaintiff-state was doing something that the district court considered important as enforcing the federal antitrust laws.¹⁶⁶ The Russell Stover decision did not distinguish between the sovereign federal government suing under its own laws and a sovereign state government suing under federal law.¹⁶⁷ Massachusetts relied on the parens patriae doctrine to bring the suit, which the court noted as a reason to consider the suit as a sovereign action deserving immunity from laches.¹⁶⁸ After its laches defense collapsed, the chocolatier settled with the Commonwealth.¹⁶⁹

Eight years later, the Supreme Court implied in California v. American Stores Co. that antitrust actions brought by state attorneys general were not acts of sovereigns but rather of private parties suing under federal law.¹⁷⁰ American Stores involved a state attorney general’s request to enjoin a merger between American Stores and another large California supermarket chain.¹⁷¹ The FTC initially reviewed the merger following American Stores’ HSR filing and declined to litigate after a months-long investigation.¹⁷² California participated in the investigation, warned the merging firms that it would challenge the merger on its own if its antitrust concerns were not addressed, and sued for an injunction to block the merger after the FTC declined to sue.¹⁷³

American Stores was ultimately a mixed bag for state enforcement. At issue in American Stores was whether divestiture should be available in injunctive suits brought by parties other than the Agencies.¹⁷⁴ In a victory for California and state attorneys general broadly, the Court held that divestiture was not only available to the states but was also an important tool for them to have.¹⁷⁵ However, the opinion repeatedly referred to state actions brought under federal antitrust law as private, sapping them of their sovereign character and providing the basis to subject them to a laches defense.¹⁷⁶ In other words, the “states factor” was not in play in American Stores. Instead, American Stores implicitly overturned Russell Stover, where the court predicated its denial of laches on Massachusetts’s status as a sovereign.¹⁷⁷ The American Stores opinion referenced state-sought injunctions as being private in character, but it did not specifically address how strict the laches window should be.¹⁷⁸

In a solo concurrence, Justice Kennedy wrote to suggest a much shorter and more punishing laches window of months, not years.¹⁷⁹ According to Justice Kennedy, the window could plausibly be the point between California becoming aware of the merger and the consummation of the transaction.¹⁸⁰ Such a strict window would effectively require California to sue without participating in the FTC’s investigation to glean the relevant facts to preserve its remedy.¹⁸¹ After American Stores, thirty years passed before a court would again rule on the applicability of laches to state injunctive suits. In that period, state enforcement of the federal antitrust laws was increasingly normalized.¹⁸²

American Stores laid out the basic principles for why the antitrust laws allow all parties to request injunctive relief, but the next case, Government of Puerto Rico v. Carpenter Co., is a textbook example of how these remedies may be abused. Carpenter was the first time a government plaintiff was thwarted by a laches defense in a federal antitrust action.¹⁸³ However, the case did not litigate the issue of laches running against a sovereign suing under federal law because Puerto Rico did not contest the defense.¹⁸⁴ In Carpenter, the Commonwealth of Puerto Rico sought equitable relief under the federal antitrust laws against a spate of chemical companies that had allegedly agreed to fixed prices.¹⁸⁵ Puerto Rico became aware of the conspiracy in 2010, after receiving word that federal agents had raided the facilities of the alleged co-conspirators, but it waited eight years to file.¹⁸⁶

Puerto Rico’s lawsuit contained several suspicious flaws that made it a prime target for the laches defense. First, the Commonwealth waited almost a decade after receiving notice of the facility raid to file suit, putting it outside the limitations period for treble damages.¹⁸⁷ Appearing to acknowledge this, Puerto Rico recharacterized its stale claim for damages as one seeking disgorgement.¹⁸⁸ Second, the price-fixing scheme had stayed in the public eye: Private plaintiffs had brought class action lawsuits after the 2010 raids that concluded with highly publicized, million-dollar settlements.¹⁸⁹ Moreover, various companies in the industry faced criminal prosecutions and received fines from global competition authorities for the price-fixing scheme.¹⁹⁰ Ultimately, the district court applied laches, holding that Puerto Rico had plenty of notice and brought the claim too late.¹⁹¹ The court went on to suggest the Commonwealth’s action bore resemblance to “a needless fishing expedition.”¹⁹²

As if the circumstances of Carpenter weren’t peculiar enough on their own, Puerto Rico filed a separate action against firms in another industry under “strikingly similar” circumstances at almost the exact same time.¹⁹³ Three days before its suit in Carpenter ultimately succumbed to the laches defense, Puerto Rico filed another antitrust lawsuit that became Puerto Rico v. Hitachi Auto Systems, Ltd. This lawsuit also sought disgorgement against firms in an industry that had been the subject of a criminal antitrust investigation.¹⁹⁴ Just as in Carpenter, almost ten years had passed since civil antitrust suits had publicized the criminal investigation and offending conduct.¹⁹⁵ Even more suspicious, Puerto Rico asked for the exact same amount in unjust enrichment recoveries ($50 million), and the same outside counsel assisted the Commonwealth with both lawsuits.¹⁹⁶

Carpenter might be a good case to justify laches running against state plaintiffs, but when proper notice is taken of the “states factor,” laches is flexible enough to account for misuse of government authority without being universally applied.¹⁹⁷ The suspicious facts underlying Carpenter and Hitachi demonstrate that, among state injunction actions, they were uniquely vexatious suits. The decision to apply laches in Carpenter was correct—but only if Puerto Rico’s suit was indeed a meritless fishing expedition designed to recover funds over blatantly stale claims. However, this decision went on to serve as the basis for the outcome in Meta Platforms, despite that suit being factually different.¹⁹⁸ Unlike in the Puerto Rico cases, the coalition of forty-six states in Meta Platforms was broad enough to be almost indistinguishable from the United States itself, defraying concerns about parochialism and defective enforcement. In other words, especially where multiple states are involved, the “states factor” should help, not hinder, state enforcement actions.

Even more concerning, a corporate defendant has already relied on Meta Platforms and has asked the federal courts to apply laches and flick away antitrust injunctions by directly elected state attorneys general. In one of the five cases brought by state enforcers against Google, the search giant asserted the defense against a fleet of sixteen states and Puerto Rico with partial success.¹⁹⁹ The action alleged covert anticompetitive conduct on Google’s proprietary auction market for digital advertising sales in violation of the Sherman Act.²⁰⁰ Unlike in Carpenter, the plaintiff-states seek only injunctive relief, and unlike in Meta Platforms, the injunction would not unwind a consummated merger.²⁰¹ Denying defendant’s motion to dismiss, the Southern District of New York held that the plaintiff-states had plausibly alleged a monopolization claim, even though some of its conduct elements occurred outside of the four-year laches window.²⁰² Unlike mergers, which are highly recognizable and publicized, the infringing conduct in Google was covert and nonpublic, and the states’ delay in bringing suit was more excusable.²⁰³ The Google court further differentiated its reasoning from that in Meta Platforms by withholding the ultimate application of laches until a “more developed factual record” could be assembled.²⁰⁴ This is consistent with laches’s history as a fact-based defense that is not often resolved at the pleading stage, as it was in Meta Platforms.²⁰⁵ This Texas-led lawsuit against Google was filed in 2020, centralized in an MDL in the Southern District of New York, and remanded to its original filing location in Texas after the State Antitrust Enforcement Venue Act exempted the case from inclusion on the MDL.²⁰⁶ The Texas District Judge has scheduled trial for March of 2025.²⁰⁷

Google, like American Stores, could send mixed messages about the “states factor.” If affirmed, it may weaken state enforcement by canonizing Meta Platforms and further clarifying that states are not categorically immune from laches.²⁰⁸ However, it directly cites the district court’s opinion in the Meta Platforms litigation for the proposition that the “states factor” matters in antitrust injunctions ²⁰⁹ and could defeat a laches defense in close cases. In Google, the “states factor” seems to be operating in the background; it receives only a subtle nod as one of “[o]ther context-specific factors,” ²¹⁰ as if to signal that its importance is secondary to other elements of the laches analysis. So even after Google, the precise weight of the “states factor” is unknown.

Russell Stover implies, perhaps incorrectly, that all state suits under the federal antitrust laws are of a sovereign nature and thus immune to laches.²¹¹ Meta Platforms takes the opposite view and uses American Stores’ characterization of state actions as “private” to support the conclusion that state injunctive suits are completely devoid of any public value or government character.²¹² The optimal characterization lies somewhere in the middle: When states seek injunctive action to remedy competitive conduct (as opposed to damages or equitable monetary relief), their enforcement priorities diverge from the interests of “pure” private actors and instead resemble those of the Agencies.

Meta Platforms was a textualist decision that further blurred any separation between suits brought by a state government under a federal right of action and other injunctive suits brought by private parties.²¹³ It is the most influential decision to date that affirmatively applies laches to state antitrust injunctions. In addition to its direct impact, Meta Platforms raises a host of broader questions: How much does the “states factor” matter in applying equitable defenses? Will the weakening of states’ flexibility upset the steady push and pull between the states and federal government?

III. State Antitrust Injunctions After Meta Platforms

The imposition of laches and the broader push to categorize state claims for injunctions as purely private lawsuits increase the discretion of federal judges to decide the fate of state enforcement actions. For now, we can only speculate about the long-term impact of Meta Platforms. This Part closes with a few observations about the potential impact of laches on state enforcement decisions and argues that any future laches rulings should heavily weigh the “states factor.”

A. Incentivizing Merger Litigation over Enforcement Discretion

In general, a time-bar against certain government enforcers adversely affects civil antitrust enforcement by encouraging states to sue indiscriminately. Congress passed the HSR Act to help the Agencies predict the competitive significance of mergers.²¹⁴ If the Agencies decide to not take action at the consummation of a merger, the government retains the option to unwind it later via a divestiture remedy.²¹⁵ Thus, potential divestiture suits lurk in the background and serve as a deterrent function on firms.

Under this approach, the Agencies give the merging companies the benefit of the doubt at the outset and save a request for injunctive relief for later, if the merger turns out to violate the Clayton Act.²¹⁶ This approach is highly beneficial to merging companies. A preliminary injunction issued before a merger is consummated often kills it altogether.²¹⁷ Preliminary injunctions are inherently predictive exercises, and there is always a chance that a premature, court-issued injunction could destroy an otherwise lawful merger.²¹⁸ Post-close divestiture suits are a useful escape hatch that quiets the possibility of overenforcement.

For example, in the technology industry, “market power often is transitory and unpredictable.”²¹⁹ At the time of a merger, the parties may not be able to exert any market power.²²⁰ Therefore, the argument goes, the parties should be permitted to close in the face of competitive unknowns, with the understanding that the lasting competitive significance of a merger can be litigated later.²²¹ Evidence of market structure after closing could be admitted as objective evidence of what was initially considered an uncertainty.²²² At this later time, the court will have more information about how much the merger actually lessened or promoted competition in the relevant market.²²³

Instagram’s 2012 merger with Facebook exemplifies this approach. The merger first received the benefit of caution from enforcers: It was allowed to proceed after the FTC decided not to challenge it.²²⁴ This makes sense because, at the time, Instagram had many characteristics that would have made its competitive significance difficult to assess. It was small, employed very few people,²²⁵ and had many competitors.²²⁶ It had rapid user growth, but in 2012 it might have been reasonable to think that growth was fleeting.²²⁷ Instagram’s uncertain competitive significance in an industry marked by rapid innovation helped the merger close, but by 2020, antitrust enforcers realized their mistake.²²⁸ The FTC then opened a divestiture action against the social media giant. ²²⁹

Facebook’s 2012 acquisition of Instagram serves to illustrate the caution, discretion, and restraint that characterizes antitrust enforcement. Restraint prevents overenforcement, and, in return, the post-close divestiture option prevents underenforcement. This tradeoff only works if the divestiture option is not limited by a time-bar. After Meta Platforms, states contemplating injunctions have been put on notice: file suit in under four years or risk sleeping on your rights completely.²³⁰ This changes the landscape. Rather than promoting restraint, states face increased urgency, which in turn increases the risk of overenforcement.

The four-year laches window applied to the states in Meta Platforms was not created for effective discretionary enforcement, and it does not account for dynamic markets. In their infancy, firms participating in technology markets experience transient market power, and rivals can overtake them in very short order.²³¹ Is a four-year laches period really long enough to determine whether market power is transient or permanent? As noted above, the four-year period was borrowed from elsewhere in the statutes, with the goal of encouraging conventional antitrust litigants to resolve their personal antitrust injuries quickly.²³² The four-year period does not account for whatever benefit might stem from discretionary nonenforcement or deferral.²³³ By characterizing states as private litigants rather than enforcers, the federal courts incentivize anxious states to file for an injunction regardless of what merger investigations uncover.²³⁴

B. Complicating the Negotiations Preceding a Document Production Agreement

A strict laches period for state antitrust actions also upsets the antitrust enforcement regime’s efficiency by disrupting the relationship between the states and their federal counterparts. As discussed in Part I, the shifting tide of antitrust enforcement between the states and the Agencies insures against underenforcement and preserves advocacy for local (as well as national) concerns.²³⁵ When one enforcer recedes, the other resurges. State attorneys general bring only 3 percent of their merger cases without the aid of the Agencies, and the vast majority of state and federal enforcement actions overlap.²³⁶ Antitrust federalism naturally produces different enforcement outcomes from time to time, but the enforcement community generally agrees that divergence should not be the norm.²³⁷ Federal enforcers and the states have taken steps to harmonize their approaches where possible to reduce the compliance burden on businesses, but this collaboration only works if state and federal enforcers begin their investigations with a shared objective in mind. ²³⁸ Time-barring the states’ injunctive suits alters their calculus even at the investigative stage, meaning states start out on a different footing from the Agencies before either contemplates a lawsuit.

For example, document production agreements are one of the lengthiest and most difficult stages of an investigative life cycle.²³⁹ This is particularly true of merger investigations, where additional time and expense create headaches for firms eager to consummate.²⁴⁰ The Agencies begin the process with the upper hand because the HSR Act requires merging parties to produce internal corporate documents relevant to their pending merger.²⁴¹ These documents are withheld from the states unless the merging parties consent.²⁴² However, states can still pry the documents loose via their subpoena power for their own suits.²⁴³ To avoid making an HSR filing and complying with subpoenas from skeptical states, the merging firms often consent to the Agencies and state attorneys general sharing the documents at the outset. ²⁴⁴

These document production agreements involve back-and-forth negotiation between the three groups of parties at the table: the merging companies, the states, and the Agencies. The Agencies want to preserve credibility with opposing counsel to ensure a swift investigation.²⁴⁵ The merging companies want assurances that participating in a joint federal-state investigation will result in a single, uniform enforcement decision.²⁴⁶ States want the merging companies to cooperate with the process even though they may be constrained by local freedom of information statutes that prevent them from promising complete confidentiality over the parties’ trade secrets.²⁴⁷

Spurring the states to sue under the threat of a time-bar changes the incentives for the other parties at the table, which alters this process from a good-faith negotiation between regulators and their targets into an adversarial effort. If laches continues to be applied despite the “states factor,” states will almost certainly lose the right to enjoin a merger unless they quickly bring an injunctive suit. Because states will feel more pressure to sue, enterprises will face a difficult choice with regard to their sensitive documents: They can hand them over to the eager states who may not be able to protect them, or they can choose to not cooperate and risk a subpoena. The Agencies are also put in a tricky position where they can’t credibly assure the merging parties that their joint investigation will produce the same result as the states’.²⁴⁸

The consequences of the state time-bar on investigations are most acute in edge cases, where the facts about the deal are ambiguous and do not obviously suggest that the Agencies and the states will make the same enforcement decision. Enforcers have an incentive—and some would argue a responsibility—to wait in the face of ambiguity.²⁴⁹ But laches means that states are now under an urgent time crunch to bring an injunction.²⁵⁰ The Sprint–T-Mobile merger, discussed at greater length in Part I, serves as an instructive example. When their merger was announced in 2018, observers noted that the combination of two horizontal competitors in the wireless carrier market would reduce the number of firms operating in the United States from four to three, and it was a presumptively strong case if the merger were to clear without any additional protections.²⁵¹ The firms lobbied for an alternate resolution, and they convinced the Agencies. But they failed to assuage the states, who forced the firms to litigate.²⁵²

Suppose, for the sake of argument, that T-Mobile and Sprint had known in 2019 that their bargaining with the federal government would spare them litigation with the DOJ, but believed that the states, anxious about losing their right to an injunction claim because of a time-bar, would sue as a fait accompli. This would have raised some unsettled questions. Would the federal government, amidst negotiation to structure its own remedy with T-Mobile and Sprint, struggle to reach a confidentiality agreement for a premerger investigation with a more litigious group of state attorneys general?²⁵³ Would the states, operating under diverging incentives from their federal counterparts, dispense with traditional protocol and pry open investigative files with their subpoena powers?²⁵⁴

At this point, the impacts of time-barring state injunctive suits on investigations are speculative. Even if states are anxious to litigate more mergers at the outset, they simply do not have the resources to do so in every case without the Agencies’ help.²⁵⁵ However, the time-bar on state injunctive claims now adds some weight in favor of litigating,²⁵⁶ and it may be enough to push states to litigate pending mergers where they otherwise might accept a proposed alternative resolution. This makes it harder for states and their federal counterparts to agree at the outset to a remedy and stick to the joint plan. This increased uncertainty may diminish the role of the states, but it could also have the opposite effect of forcing them to resort to more contentious subpoenas to gather evidence and bring injunctive suits.

C. Diverting State Merger Challenges to State Court

If the federal antitrust common law becomes more hostile to state attorneys general, the states may move their enforcement actions into state court, where they definitively are sovereigns. In this scenario, laches will not bar injunctive suits brought under state law.²⁵⁷

Today, state attorneys general predominantly rely on federal law to bring antitrust claims, and federal antitrust claims cannot be filed in state court.²⁵⁸ State attorneys general are reluctant to file cases in state court because if they do, they have to rely exclusively on local antitrust law. The Clayton Act’s parens patriae provision allows attorneys general to directly recover monetary relief on behalf of citizens, but some state statutes have no such civil recovery provisions.²⁵⁹ State attorneys general tend to disfavor their own local statutes for other reasons, too. For instance, very few states have antitrust statutes that allow their attorney general to enjoin mergers.²⁶⁰ For those that do, state antimerger case law is often sparse and conflicting, whereas federal law has well-developed common law that guides state attorneys general and federal judges alike.²⁶¹

Moreover, if a state wants to block a merger in its own court, under its own law, without the support of any additional enforcers, the undertaking is enormous.²⁶² Most state judges have “little or no experience with antitrust cases.”²⁶³ Federal law also permits cooperation and resource sharing among state attorneys general that their local laws may not permit.²⁶⁴ When suing by themselves, the states must define the relevant product market and the effects of the merger on that marketplace, thus the investigation and litigation expenses tend to be higher in merger cases than they are for other types of antitrust cases.²⁶⁵

Despite their limitations, state antitrust statutes have considerable potential for attorneys general in a post-Meta Platforms environment. As a matter of federal law, state antimerger statutes that track the federal antimerger statute are not preempted.²⁶⁶ Even state antitrust statutes that are substantively different from the federal version are likely constitutionally permissible.²⁶⁷ Of course, federal antitrust law can still preempt state antitrust statutes where business activity is national in scope and divergent state standards upset uniformity.²⁶⁸ Nevertheless, state antitrust statutes enjoy a higher presumption of nonpreemption, because Congress was fairly explicit that its intention was not to displace state legislation in passing the federal statutes.²⁶⁹ States have rarely attempted to challenge a transaction under state law, but state courts are not categorically opposed to trying merger cases with national implications purely under state law.²⁷⁰

Meta Platforms’s long-term impact on state enforcement may be speculative, but its effects have already trickled into the government’s ongoing response to the proposed supermarket merger between Kroger and Albertson’s. While the FTC’s investigation was pending, the states did not wait—the State of Washington and the State of Colorado filed rare challenges to the merger in their state courts before the federal government’s pre-litigation investigation concluded.²⁷¹ Washington filed the challenge as a sovereign,²⁷² citing the deal’s disparate impact on Washington consumers.²⁷³ The complaint advises the state court to use federal precedent to guide its inquiry²⁷⁴ but relies entirely on state law for its allegations.²⁷⁵ Despite Kroger and Albertson’s best efforts to structure a divestiture settlement with the federal government, Washington state was unsatisfied with the proposal and forged ahead alone.²⁷⁶

More state court suits open defendants up to additional liability in additional forums. Compare that to state actions now, which are often coordinated among multiple state enforcers and consolidated in one federal forum.²⁷⁷ Any nuisance stemming from state enforcement of the federal statutes today seems quaint in comparison to facing multiple lawsuits in multiple forums under multiple legal standards.²⁷⁸

Perhaps the strangest consequence of this development would be its resemblance to the earliest days of state antitrust, where state attorneys general relied exclusively on state law to revoke corporate charter privileges using the quo warranto remedy.²⁷⁹ The federal statutes developed as a supplement to state enforcement, and the need for a national uniform body of law eventually caused state remedies to fall out of favor.²⁸⁰

The federal antitrust statutes were designed to supplement state enforcement capacity, but they are not the only tools state attorneys general have. If the states are indistinguishable from private parties when suing under the federal antitrust laws, and this frustrates their ability to secure relief,²⁸¹ they can always resort to their own local statutes. Critics of state enforcement often cite divergent outcomes as a reason to limit the involvement of state attorneys general,²⁸² but continuing to water down the federal statutes risks both splintering their utility for state attorneys general and prompting them to consider their own state statutes.

Conclusion

In Meta Platforms, the D.C. Circuit opened its laches analysis with an observation that the states’ attempt to seek an injunction was both “odd” and “old.”²⁸³ In the narrow textualist view that the injunctive suit was an aggregated pack of private claims asking a federal court to unwind two mergers, the suit is indeed “odd” and “old.” But this view subverts crucial historical and legal context. When the laches analysis includes the role of the states as the first antitrust enforcers, the purpose of the federal statutes as a supplement to their activities, and the privileges the federal statutes grant the states, the states more closely resemble enforcers than they do private plaintiffs. Viewed this way, the Meta Platforms suit is concededly “old” but certainly not “odd.” Ignoring the context of the states’ role in the laches determination is an explicit choice and an implicit value judgment about the merits of antitrust federalism, including local participation and democratic engagement. Federal courts should heavily weigh the “states factor” in discretionary determinations, or they risk making the federal statutes ineffective tools for state attorneys general. This may spur more divergent enforcement outcomes, not fewer. For its part, Congress should amend the federal antitrust statutes to grant the states a less limited right of action than the private right in the Clayton Act. This will allow the states to continue bringing enforcement actions that are mostly uniform with their federal counterparts, but with modest deviations consistent with their role as insurance against underenforcement.

* J.D. Candidate, May 2024, University of Michigan Law School. The views expressed in this publication do not reflect those of the United States Department of Justice. Thank you to Beatriz Marques, Professor Sanjukta Paul, and Professor Dan Crane for feeding my curiosity about antitrust and helping me grow as a scholar and practitioner. I am also grateful to the students of the Consumer Advocacy and Financial Regulation Organization (CAFRO) for their friendship and community. Special thank you to Hannah Cohen Smith, Ashley Munger, Kassie Fotiadis, Jordan Schuler, Katie M. Osborn, and Eddie Plaut. This piece is better for your edits, and my experience working with you was full of intellectual rigor and joy. And thank you to Hannah Schulze, Jim Schulze, Ann Marie Schulze, and Jake Hyde. Finally, thank you to Emma Banchoff for your love, support, and ice cream through every juncture of this project. All errors that remain are my own.