Nevada one of several states considering boosting antitrust protections
The office of Nevada Attorney General Aaron Ford, who last year joined several other states in an ultimately successful effort to block a proposed merger between grocery giants Kroger and Albertsons, did not respond to a request for comment about the bill. (Photo: April Corbin Girnus/Nevada Current)
Nevada could be the first state to adopt legislation that would boost its ability to fight or address antitrust concerns.
Senate Bill 218 would adopt the Uniform Antitrust Pre-Merger Notification Act, which would require companies to submit to state attorneys general the same notices and information they are already required to provide federal agencies prior to mergers or acquisitions.
'It does not require the attorney general to try and stop the merger,' emphasized state Sen. James Ohrenschall, the bill sponsor, during his presentation Thursday to the Senate Commerce and Labor Committee. It only requires that the AG be made aware of the proposal so they can analyze the impact of a merger or acquisition on industries, markets, and consumers in the state.
The legislation was drafted by the Uniform Law Commission, a longstanding national nonprofit, nonpartisan group behind other broadly adopted state legislation, including the Uniform Commercial Code and the Uniform Anatomical Gift Act. Ohrenschall serves as a ULC commissioner.
The pre-merger notification act has been introduced into eight state legislatures this year, including California, Utah and Colorado, according to ULC.
States have the same right to enforce the federal merger law, said Dan Robbins, who chaired the ULC committee that drafted the act, but they may not find out about a proposed merger for months after their federal counterparts do.
'What often happens is a state will learn about it in a newspaper and say, 'Oh my goodness… I might want to take a look at that,'' said Robbins. 'What the state then needs to do is issue subpoenas and go into litigation, spending taxpayer dollars to get information that it could already have.'
That's not good for businesses, he continued, which don't want states to come in months after they believe a deal is closed and say they have concerns.
Under SB 218, Nevada would be notified only if the Silver State is the primary place of business or if the business has more than $25 million in net sales within the state. The attorney general's office would be prohibited from charging any fees for filing.
Nevada already requires certain health care companies to inform the state about potential mergers. Lawmakers passed that legislation in 2021 over growing concerns about the consolidation of healthcare companies, particularly by private equity firms.
SB 218 as introduced would expand notice to all companies making filings to the Federal Trade Commission and the U.S. Department of Justice's antitrust division as required by the federal Hart-Scott-Rodino Act. The filings would be confidential at the state level, just as they are at the federal level.
Nevada Attorney General Aaron Ford did not participate in the legislative hearing Thursday. The Current asked Ford's office whether he is supportive of the bill but did not receive a response by publication time.
Ford last year joined several other states and the FTC in an ultimately successful effort to block a proposed merger between grocery giants Kroger and Albertsons. In 2019, Ford took action against a proposed merger between Sprint and T-Mobile, which was resolved with a $30 million settlement for Nevada.
The Nevada Resort Association submitted an amendment to exempt businesses regulated by an administrative or regulatory agency.
NRA Lobbyist Misty Grimmer told the committee those in the gaming industry are already required to give similar notice to the Nevada Gaming Control Board for approval of mergers and acquisitions of any size, so the act would be duplicative. The attorney general serves as legal counsel for the state's gaming division.
State Sen. Skip Daly expressed concern the wording of the proposed amendment might be too vague and used by other industries lawmakers don't intend to exempt.
Ohrenshall, Grimmer and the committee's legal counsel said they would work on refining the language of the amendment.
The state legislation is being introduced against the backdrop of President Donald Trump firing two members of the Federal Trade Commission, which enforces antitrust laws. 'When people hear this news,' one of the commissioners who was fired told the New York Times 'they need to think about the billionaires behind the president at his inauguration.'
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