On January 23, 2019, the U.S. Court of Appeals for the Third Circuit (“Third Circuit”) issued an opinion denying the Commonwealth of Pennsylvania the right to recover attorney’s fees after it had successfully blocked a hospital merger. The Third Circuit determined that the state had no federal statutory basis to be awarded attorney’s fees since the injunction had been granted under Section 13(b) of the Federal Trade Commission Act (“FTC Act”), which does not provide for attorneys’ fees, rather than Section 16 of the Clayton Act.
This case establishes binding precedent in the Third Circuit that state attorneys general will only have standing to seek attorneys’ fees in antitrust actions under the Clayton Act when the state actually litigates the case under that section. It also potentially has broader implications if other circuits decide to look to this decision as persuasive authority when deciding similar cases in their jurisdictions. Continue Reading