By Matthew Perlman

Law360 (April 21, 2020, 8:17 PM EDT) -- State-level enforcers have been focusing on price-gouging and other issues related to the COVID-19 pandemic, but continue to press ahead with open antitrust investigations, several officials said during a panel discussion published Tuesday.

Deputies and assistants from the offices of various attorneys general spoke during a videocast discussion as part of the virtual version of the American Bar Association Antitrust Law Section's annual spring meeting.

The enforcers said their consumer protection sections have been focusing on instances of price-gouging that have cropped up since the pandemic began. But Stacie Lambert Deblieux, an assistant attorney general for Louisiana, said her office is also looking for price hikes that might be rooted in anti-competitive behavior.

"That's one way the antitrust side and the consumer side will be working together a little bit moving forward," Deblieux said. "To try to keep our eyes open and identify if there are any price-gouging complaints or cases of that nature that maybe sound in antitrust, or are helping to further an anti-competitive scheme."

Kathleen Konopka, a deputy attorney general for the District of Columbia, said that office has already sent more than 15 cease-and-desist letters concerning price-gouging, including to landlords, noting that the district considers undue rent increases a form of price-gouging.

"We also have been working with our sister states in the multi-state context to address large national retailers, and have had numerous conversations with large retailers, including Amazon and Walmart, in order to make sure that they are properly policing their platforms in terms of price-gouging," Konopka said.

Gwendolyn J. Cooley, an assistant attorney general in Wisconsin, said that in light of COVID-19, she suspects state enforcers will continue focusing on the pharmaceutical industry moving forward. A broad contingent of states has a pending case targeting an alleged industrywide price-fixing conspiracy of generic drugs that federal enforcers are also investigating.

Cooley also said the investigation of technology platforms being waged by a contingent of states will continue despite the pandemic and that there will "absolutely" be cooperation between state and federal enforcers on some of the cases that come out of it.

"It just may not be every state cooperating with federal enforcers on every case," Cooley said.

The discussion also touched on the U.S. Department of Justice and the Federal Trade Commission launching an expedited, temporary procedure to review collaborative agreements among companies trying to respond to the COVID-19 pandemic. Paula Blizzard, a deputy attorney general in the California attorney general's office, said there's a lot of collaboration going on right now and that a lot of it is necessary, especially in the health care industry.

She also pointed to a decision from the Federal Communications Commission last month to allow mobile carriers to share certain spectrum to help handle increased strain on the networks as a large portion of the population works remotely. The antitrust problem is not with these collaborations being formed, Blizzard said, but rather that they'll eventually have to come to an end.

"I think the challenge for antitrust is not so much now, but in six months or a year from now," Blizzard said. "Then, we're going to have to try and unwind a lot of this, and it's going to be hard."

Blizzard noted that the spectrum-sharing deal involves Dish Network and T-Mobile, the companies at the center of a recent failed merger challenge led by New York and California. The challenge came from a contingent of 14 attorneys general, despite the DOJ and FCC approving the deal with the sale of Sprint's prepaid business and other assets to Dish in an effort to stand the satellite provider up as a new mobile carrier.

While we need all the capacity we can get at the moment, "almost at any cost," Blizzard said, the spectrum-sharing agreement "upends the remedy" secured by the federal agency.

"How do you get all that spectrum, which is now deployed on cell towers across the country, back out into the hands of Dish to make a remedy," she said.

Blizzard also addressed the diverging approaches from federal and state enforcers that reviewed the T-Mobile deal. Some contend that instances where enforcers disagree are bad for enforcement, but she said the opposite is true. DOJ was able to secure a better settlement with T-Mobile and Dish because of the pending litigation, she said, and individual states cut their own deals with the companies.

"I think one of the lessons you should take away, is that if the feds and states aren't getting along, you're likely to see more enforcement, rather than less," Blizzard said. "If you think us losing that case is going to make your life easier, that's the wrong lesson."

She also addressed the DOJ's interjection in the T-Mobile case, where the agency tried to argue that the court should defer to the decisions made by federal enforcers, saying the argument is just wrong.

"The law says otherwise and even goes beyond what states can do and says any individual person can challenge a merger," Blizzard said.

Deblieux also stressed the importance of a framework with federal and state enforcers enjoying overlapping jurisdictions and said that state enforcers shouldn't be confined to working only on local issues. Things like nationwide mergers, she said, impact a state's citizens directly.

"That's our role in government, the attorney general is there to protect its citizens," she said. "I think we have to be able to play in both arenas and work together."

--Additional reporting by Christopher Cole and Bryan Koenig. Editing by Orlando Lorenzo.

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