USA – ILLINOIS Trends and Developments Contributed by: Craig Martin, Matt Basil and Katrina Robson, Willkie Farr & Gallagher LLP
Willkie Farr & Gallagher LLP 300 N LaSalle Dr Chicago, IL, 60654 USA
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A Changing Landscape of State Antitrust Enforcement
Commerce Clause”. Connecticut v Sandoz , Inc ., 820 F. Supp. 3d 125, 164 (D. Conn. 2026) (citing Davis , 553 U.S. at 337). Consequently, states lack the authority to police certain forms of interstate, potentially anti - competitive conduct. For example: • Cangrejeros De Santurce Baseball Club , LLC v Liga De Beisbol Profesional De Puerto Rico , 146 F.4th 1, 23 (1st Cir. 2025), cert. denied sub nom. Cangrejeros de Santurce Baseball Club , LLC v Liga de Beisbol Pro . de Puerto Rico , Inc ., 146 S. Ct. 1780 (2026) (explaining that the Commerce Clause generally precludes application of state antitrust laws to interstate sports leagues but not to purely intrastate sports leagues); and • Partee v San Diego Chargers Football Co ., 668 P.2d 674, 679 (Cal. 1983) (finding the Commerce Clause precludes application of state antitrust law to a National Football League franchise). In an increasingly integrated economy, therefore, one may expect that states would – even if only by neces - sity – cede antitrust authority to federal regulators. See, for example, Partee , 668 P.2d at 679. States even began to tie their antitrust regimes to the federal one for that reason. For example: • Conn. Gen. Stat. Ann. § 35-44b (requiring courts to “be guided by interpretations given by the federal courts to federal antitrust statutes”); • Del. Code Ann. tit. 6, § 2113 (requiring the state antitrust law to “be construed in harmony with rul - ing judicial interpretations of comparable federal antitrust statutes”); • 740 Ill. Comp. Stat. Ann. 10/11 (stating that “[w]hen the wording of [a state antitrust law] is identical or
While the current federal administration retained many of its predecessor’s written antitrust policies – includ - ing the 2023 Federal Merger Guidelines – its imple - mentation thereof has deviated. States have begun to fill the gap between the current and former administra - tion. Indeed, states have begun to empower their own enforcers to reshape markets. Savvy businesses can no longer expect states to mirror federal law or federal enforcement priorities; rather, they must stay abreast of the latest developments or risk antitrust jeopardy. Historically Historically, “states were the regulators of first instance of microeconomic activities”. Wayne D. Col - lins, Trusts and the Origins of Antitrust Legislation, 81 Fordham L. Rev. 2279, 2335 (2013). “Consistent with the prevailing notions of federalism, the responsibil - ity for... preserving competition originally fell to the individual states”. Id. Indeed, prior to the Sherman Act’s 1890 passage, 13 states had enacted their own antitrust law: Iowa, Kansas, Maine, North Carolina, Nebraska, Texas, Tennessee, Missouri, Michigan, Mis - sissippi, North Dakota, South Dakota, and Kentucky. Id. That is, states observed a federal regulatory gap and attempted to fill it. Over time, federal enforcement assumed greater importance. After all, “[t]he Commerce Clause empow - ers Congress ‘[t]o regulate Commerce... among the several States[.]’” Dep ’ t of Revenue of Ky . v Davis , 553 U.S. 328, 337 (2008) (quoting U.S. Const. art. I, § 8, cl. 3) (ellipses original). “Implicit in this grant is that the [s]tates lack the ability to regulate interstate com - merce; this implied doctrine is known as the ‘dormant’
272 A NTITRUST LI T IGATI O N 2026
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