Fireside Chat with Gwendolyn Cooley

Edith Harold: Hello everyone and welcome to this Federalist Society virtual event. My name is Edith Harold and I'm an Assistant Director of Practice Groups with the Federalist Society. Today we're excited to host this FedSoc Fireside Chat with Gwendolyn Cooley. Gwendolyn is the former Antitrust Task Force Chair of the National Association of Attorneys General and the former Wisconsin Assistant Attorney General. She is joined by Dina Kallay, who is the head of Antitrust and Competition Law at Ericsson. If you'd like to learn more about today's moderator or speaker, their full bios can be viewed on our website fedsoc.org. If you have a question throughout the program, please enter it into the Q&A function at the bottom of the Zoom window, and we'll do our best to answer as many as we can. Finally, I'll note that as always, all expressions of opinion today are those of our guest speakers, not the Federalist Society. With that, Dina, thank you for joining us today, and I'll hand things over to you.

 Dina Kallay: Great, thanks very much, Edith. We're going to have an interesting conversation today, so I'm looking forward to it and to learning more about the state AGs. So Gwendolyn, tell us a little bit more about the state AGs and how do they work together through the National Association of Attorneys General.

Gwendolyn Cooley: Thank you so much and thank you so much to the Federalist Society for having me today. I'm delighted to talk about the state AGs. My heart is really with the state AGs after 20 years of service to them. So let me explain a little bit about how the Antitrust Task Force fits into the National Association of Attorneys General and all that. So there are 56 attorneys general around the country. You may be scratching your head saying, "I believe there are only 50 states", but obviously you're sitting in DC. That's one of those states. And then there are attorneys general in Puerto Rico and the US Virgin Islands and American Samoa and other districts and territories. So they all have AGs. Many of them also do antitrust.

So those 56 AGs then have, let's say at the ag level, there's an antitrust committee composed of the attorneys general. Under that antitrust committee, they have designated an antitrust task force. They call it a multistate antitrust task force, and that is comprised of the 270 attorneys around the country who do antitrust. I led that group as a staff person working in the Wisconsin Attorney General's office. So I was both the Antitrust Task Force chair and the Assistant Attorney General for antitrust for Wisconsin during that time. So 20 years in the Wisconsin ags office doing antitrust and then three years as antitrust task force chair. The antitrust task force is organized into kind different committees, just like a lot of organizations. So we have substantive committees like pharmaceuticals, and there's a technology industry working group, which as you'd imagine deals with big tech since the states have a lot of presence in that industry.

But then there's also other committees like an amicus plus committee that does works on coordinating if there are amicus briefs or things like that that the state ag are working in, those are all bipartisan and it's not really a big deal because all of the 270 attorneys across the country who are doing this work are actually nonpartisan civil servants. So it's a really great group that works really well together and that connections that are formed between those folks are very strong. Sometimes that leads to conflict because of the strength of that group and the continuity of that group. Because they're civil servants, they often endure beyond any given attorney general. And so there's power in that group and particularly in the position of task force chair that I don't think is necessarily obvious. And I think that that can sometimes lead to friction historically between the antitrust Task Force chair and the actual attorney's general.

Obviously the antitrust task force chair reports to their boss, their actual sitting attorney general. In my case it was Attorney General Josh Collin of Wisconsin. But then they also as task force chair report to the antitrust committee. So there's a lot of opportunity to somewhat be worried about getting ahead of a boss, and you also have to really make sure as chair that you are articulating positions that may not be your attorney general's position because you have to represent all the attorney's general, all 56 of them. And I know this will shock you, but the 56 attorney's general don't always agree on everything.

 Dina Kallay: Thank you. Interesting. So all the attorneys or the state AGs working on antitrust issues can join. It's not only the senior ones, is that right?

Gwendolyn Cooley: Correct. Right. So it is all the states that participate in the National Association of Attorneys General. We did have, during the time that I was antitrust Task force chair, we had five states actually left the National Association of Attorneys General, one of those states, Arizona came back. But those four states now do participate with the folks who are on the antitrust task force through other mechanisms, but not through the National Association of Attorney's General.

 Dina Kallay: Yeah, well, that's pretty cool. So as a first year attorney at a state AG, you can participate. That's pretty exciting.

Gwendolyn Cooley: Yeah, right. I mean, and just so many volunteer organizations, if you're willing to do the work, you can have a big impact on the way that the state AGs do things. So yeah, it's pretty impressive.

Dina Kallay: Aggressive, pretty cool. Okay. Well, since you've referenced it, you mentioned that a few states have left the task force. Do you want to tell us a little bit about those dynamics?

Gwendolyn Cooley: Sure. So there's not much that's publicly known about this, and I will admit that there's not much that even I know that's goes beyond the press reports. So five states, they were all Republican states left the National Association of Attorneys General, Alabama, Missouri, Montana, Texas, and Arizona, which like I said, came back. Four of those states remain not in the National Association of Attorneys General. I believe that they were concerned that the National Association of Attorneys General had become too liberal and so had left. But like I said, there is still participation certainly on cases with states that are not in nag. For example, those state of Wisconsin and me, when I was the a g for antitrust, I signed onto the Texas-led Google search case, which was also joined to the US Department of Justice Google search case. So there's still a lot of cooperation even with those states that are not actually in that National Association of Attorneys General.

 Dina Kallay: Just in terms of timeframe, when did they step down?

Gwendolyn Cooley: Yeah, I think it was about 2021.

 Dina Kallay: Okay. During COVID sometime. Okay. Okay, great. All right. So do you predict the upcoming elections may change the dynamics within the task force, and if so, how?

Gwendolyn Cooley: I'm not sure that they will. As I look, I have a nice little map open in front of me, and we're all so familiar with these maps. As a Wisconsin resident, I'm really enjoying the unbelievable number of ads that we receive and text messages and phone calls and mailers and et cetera. But as you look at the attorney general map, you basically have 10 AGs up this election up for election. You've got four incumbents who will win no problem. You've got four states that we won't see a partisan switch, right? It'll be a different person, but it will be the same party. And then you've got two states that are toss-ups, up for grabs, and those are the same states, or two of those states are also up for grabs in the presidential election. So I suspect that as the presidential election goes, so we'll go the attorney's general, although that's not always the case.

Living in Wisconsin, we don't always have that, but North Carolina and Pennsylvania are the two states that are kind of up for grabs in this upcoming election. So we'll see what happens with that. Do I think that that's actually going to change the dynamic? No. States are overwhelmingly, like I said, the antitrust task force is nonpartisan and even the cases themselves are bipartisan, and you can see that in the big tech cases. There's broad convergence on going after big tech. There was, even in the Wisconsin state legislature, not that you all care about the Wisconsin state legislature as much, but there was a criticism of the Wisconsin Attorney General's office as harassing big businesses, no, I'm sorry, harassing businesses except for the cases against big tech. So there's pretty broad consensus on that, but there is a lot of bipartisanship on other issues. If you think about the, and the FTCs case against pesticide manufacturers, they call it crop protection chemicals, but those cases are really dealing with some of those core issues that state ags are really focused on. State AGs should really try, I would say, to focus on things that impact the citizens in their states at the top most, and that includes agriculture, that includes fundamental resources like cell phones and utilities and things like that.

And of course, they've really been active in going after big tech in a bipartisan way. But then there's also, interestingly, bipartisanship in an industry that I'm calling entertainment, and those of you who are big sports fans may not agree that the NCAA is entertainment or whatever, but so the NCAA case started out in Ohio. It was going to be an Ohio only case, but then it suddenly ballooned and the US Department of Justice joined the Ohio case. So you see interest in that. You see states actively involved in the ticket master investigation and then the ultimate litigation there. So a lot of bipartisanship, and I don't think that's going to go away. I think it kind of ebbs and flows with the personality of the individuals in charge of the antitrust enforcement agencies at the federal level, but it isn't as much partisan as it is the personalities of those office holders.

 Dina Kallay: Yeah, okay. Interesting. Yeah, I would argue that the non-sports fans would say it's not entertainment, I guess. Okay, great. So that was a good segue. You mentioned that the DOJ joined the Ohio case. So can you talk a little bit about how the state AGs work with the federal agencies, the DOJ and the FTC?

Gwendolyn Cooley: Yeah, like I said, every administration is different in party matters less. I've worked now with four different presidential administrations, and so I've worked with the Trump administration in the past, and my experience from the state side of working with the prior Trump administration is there was somewhat less state coordination, but they were still very aggressive on antitrust. There were more deals that were, and I don't mean merger agreements, I mean the cases ended up in some kind of an agreement, often structural remedies. Obviously, Macon Del Rahim was a big fan of structural remedies, and there are certainly a lot to be said for those and certainly a reliance on the existing principles. I think that a new Trump administration, from my perspective, likely to throw out the 2023 merger guidelines. That's what I would expect possibly reverting to the 2010 merger guidelines. But we'd have to see, I suspect that based on the comments that Republican AGs have made, that they're less likely to be focused on labor related concerns. Many Republican ags have said that they don't believe that labor has a place in antitrust Harris administration. I expect to be somewhat similar to the Biden administration, which I've also worked with. They were also aggressive on antitrust, I think likely to keep the 2023 merger guidelines.

Obviously, it's unclear what would happen and what the personalities would be. I would expect to see the, I mean, I know not everybody in this audience is an antitrust practitioner, but certainly if you are an antitrust practitioner, I would expect you'll probably see that expanded HSR form finally put into place. But one of the things that's been a hallmark from my perspective of working with the Biden administration was the intense amount of cooperation. Almost every case had that federal state cooperation component. If you think historically, in the 20 years that I was working on antitrust for the state of Wisconsin, there was a span there through both the Obama and early Trump administrations where the states were bringing cases entirely by themselves, a case that I led for eight years against the makers of Suboxone. That was a case that the states brought by ourselves, right?

We were not joined to a federal government agency. So it'll be interesting to see in terms of, I think what actually happens with, particularly in merger enforcement, I think that you'll see very little, here's my controversial opinion on this based on numbers, numbers, not vibes. As Chair Khan said during the spring meeting, no significant difference. My math, and certainly somebody can correct me and I'll give you the numbers so you can correct me if I'm wrong, but the midterm Biden administration in 2022 brought 24 merger enforcement challenges of 3,152 HSR filings, which by my math is 0.7%. The midterm Trump administration in 2018 brought the antitrust division. Now, I know we're talking about two different agencies challenged 17 merger transactions of 2,111 total, which is 0.8%. So pretty close. So I mean, it's still a lot of numbers. So do I think things will change possibly, right. Again, it will depend on the folks in place, but I think that especially with the experience of the last four years, state ags are going to be additionally empowered to bring cases, and I think there's a number of reasons for that, but experience certainly working with the federal agencies these last four years is going to be one of them.

 Dina Kallay: Yeah. Okay. We got a question in the Q&A. I'm going to read it and add something to it. I dunno if you can see it at the same time. So I'll read it and it asks, how does the Association of State ags work with the federal enforcers? How do they factor in the FTC Department of Labor, DOJ, antitrust Merger, MOU, that the FTC just removed itself from? Any intel on FTC removing themselves? And I would add a question. I wanted to ask whether the federal agencies have any coordinator who coordinates with the states, is there a person designated for that?

Gwendolyn Cooley: Okay. Yeah, there are a lot of questions there. So like I said, it is a great relationship. I don't know if this is going to answer all the questions I don't have inside Scoop on the FTC. You'll have to ask them those kinds of questions, but a lot of questions there. Really great cooperation with the federal agencies, but also really great cooperation with other agencies. There is, as you ask. Thank you for the softball. There is a coordinator, and her name is Sarah Allen. She was actually the task force chair before I was the task force chair. So she's at the US Department of Justice in their front office, and she coordinates with the states and make sure that we're on the same page, which is tremendously useful to have. The FTC doesn't have that exact kind of thing that they have a long time coordinator who works in the pre-merger notification office. But then there's also more recently a lot of former state AG alums who work at the FTC, so there's good coordination that way.

Complicated question about the Department of Labor and FTC withdrawal from that. Not going to comment on what the FTC does, but I will say that the states have really been working with agencies a lot. Obviously states are focused on agriculture, and I know many people are not in love with hearing all about agriculture, but they should be because everybody eats food. So the USDA created a grant that is actually administered not through the National Association of Attorneys General, but through the state center, which is a different organization that also works with state attorneys general, but is open to all the states, including Texas. And so the USDA gave a grant for 15 million to enhance antitrust enforcement in agriculture and food related cases, both mergers and conduct cases. And so that has been huge benefit. There is a lot more coordination, I think partly as a result of the whole of government approach of the Biden administration. So there's a lot more coordination and thought about what's going on in more agencies than just the antitrust enforcement agencies. So I think we're seeing that. I don't think that's going to answer all the questions that we're asking in that Q&A, but hopefully that answers some of them.

 Dina Kallay: Do you want to add anything about the work that you do with the USDA as a non antitrust agency?

Gwendolyn Cooley: Yeah, I mean, so like I said, there's ongoing engagement. Certainly having the resources at the US Department of Agriculture are really important because they have insights, particularly that folks who are newer to antitrust enforcement may not have. I had already from my time in Congress worked on dairy related issues. So when, for example, Wisconsin had dairy merger challenges and things like that, that was something that was very straightforward for me and I didn't need to work as much with the US Department of Agriculture on that. But for those states that there's a meat packing merger or for example, the Kroger–Albertsons case, I suspect that there's good cooperation there. I'm not a party to that case.

 Dina Kallay: So for us people in private practice or in in-house, what should we know about state antitrust enforcement? What should we keep in mind?

Gwendolyn Cooley: Yes, and so you have brilliantly segued. I would say Kroger Albertson is a perfect example of you ignore the states at your peril. It's fun to talk about this with the Federalist Society because I think that there is a temptation to say, well, I'm dealing with the federal antitrust enforcement agencies, and that's enough. But in fact, the states are in a Federalist society. The states have power and they have antitrust enforcement laws, and they have antitrust enforcement authority. Certainly as a result of the State Antitrust Enforcement Venue Act of 2022 states now could bring challenges to mergers. Well strike that. I guess they can bring challenges to mergers in the venue of their choosing, but more importantly, they can challenge Sherman Act antitrust violations in their chosen jurisdictions, which means that they're not actually required to work together. I mean, in actual fact, we see kind of three different buckets of states doing that. We see that first bucket that have been talked about a lot, which is those cases that were in the olden days removed to an MDL and had been tried in the MDL and those cases then went back. The Texas AnTech cases are a great example of that bucket. So those are the cases that the State Antitrust Enforcement Venue Act. Those cases are part of the reason why that act was passed by Congress.

So then you have your choosing that's really important to a state AG. Then there are multi-state cases where the states really are choosing kind of like those states in the first bucket, like the Texas AnTech case states now in the second bucket of new cases are trying to bring a case in the court down their street because it's tremendously convenient. And then the third bucket is states who are saying, I don't want to work with all the other states because I want my own unique remedies. I want my own unique case. I'm willing to do this myself, and they go off and file in their own jurisdictions. And so I think it has really changed the way that we do antitrust enforcement in this country. And so certainly now more than ever, you can't ignore state antitrust enforcers because now they have the authority to really bring their own case.

You can't just make them MDL or join a federal ongoing case. And so then you can all try them at the same time that those arguments have been tried and they have not been succeeding. So under the State Antitrust Enforcement Venue Act, you do ignore the states at your peril on that level. But then there are also now Hart Scott Rodino Act filings, and not to be too in the weeds for the non antitrust practitioners, but the form that you file when you want to merge. Some states are now requiring HSR notice for mergers that affect their state typically related to healthcare. And so now you have to make sure that you're filing those as well, and the requirements vary across the country because of federalism.

 Dina Kallay: That's interesting. Actually, I didn't know that there was merger review on the state level. Okay. Well, speaking about payroll, you said at your peril, I guess as an enforcer, you would view that as a remedy or a tool. So what remedies or tools did you wish you had in your toolbox when you were at the Wisconsin AG, but you didn't?

Gwendolyn Cooley: Yeah. I mean, I would say that we got one of them during my time as chair, and that was the Venue Act. It certainly would've been easier for the states, right? I said I led the Suboxone case. It would've been much easier if we could have filed that case in Wisconsin, because then I wouldn't have spent half my life in Philadelphia as delightful as that city is. But so once we got that, that really was a game changer for the states. Obviously, I would've liked enhancements to Wisconsin law, and a lot of states are getting these enhancement statutes. State legislatures have really taken notice of antitrust in the last five years or so, and we're seeing increased penalty amounts for state antitrust violations. You're seeing merger notification laws like we just talked about. You're seeing more civil investigative demand authority for antitrust, and this is bipartisan, right? The Tennessee Attorney General's office recently got a bill passed through their legislature that really expands the power of the Attorney General's office and even does things like limits discovery on essentially collateral state agencies when the Attorney General brings a case. So it's bipartisan, right? You see it in Indiana, you see it in Washington State. So really a real trend amongst state legislatures to really enhance antitrust power. We did not see that in Wisconsin, so I would've certainly liked a little bit of that, but it's good to see it across the country.

Dina Kallay: Interesting. Okay, cool. Good. All right. Let's move to another area. So it's now been a couple of months since you stepped down, and it took a while, but I guess we've now seen that a new chair of the NAG Task force has been named, and her name is Elizabeth Odette from Minnesota. Can you talk a little bit about the process of electing a new NAG task board chair and the whole dynamics of how your successor came in to be not, notice how I said successor, not replacement.

Gwendolyn Cooley: Oh, oh, you're sweet. Elizabeth will have no problem replacing me. She is a delight. She is a great person active in the antitrust task force, and you were talking earlier about how new folks can really get involved. She has extensive antitrust experience, but in the private sector, she worked for a class firm for a long time, and so joining the state ags office really made a mark with the group. The antitrust task force chair is, like I said, there is that tension, and I suspect some of that tension is why it took a little bit longer. But I suspect the other reason is that because the chair is chosen by the actual attorneys general, they have other things to do than worry about who is the Antitrust Task force chair. They are the chief antitrust, I'm sorry, the chief enforcer for law enforcement in their states. So there's orders and other important things going on. So they did finally name a new antitrust task force chair, Elizabeth Odette in Minnesota.

I suspect that she will continue things in the cooperative fashion that Upper Midwesterners do. So I know that she's already reaching out to states to make sure that they're feeling well represented. And one of the concerns, certainly, I think that as much as I tried to insulate the staff from that kind of attorney general level argument about how partisan nag is, I think that there's a real effort now in particular in a way that there hadn't been before, to make sure that it is a bipartisan working group, a bipartisan amicus, a bipartisan case, really, and making sure that people are taking into account the party of the elected official in these cases. And so that will certainly be one of Elizabeth's big challenges, but I think most extremely nice. I mean, she's from Minnesota for goodness sakes, so she's extremely nice, and she will have no problem managing all of that wrangling.

 Dina Kallay: Well, good. Well, I can relate what said in the beginning that we think that antitrust is the most important thing and at the forefront of everything, and then you realize that maybe there are other priorities for people who lead large organizations. When I left the agency, I was like, there's nothing else in the world other than antitrust. Now, I don't know (inaudible).

Gwendolyn Cooley: Yeah, I mean, when I was chosen as task force chair, I was chosen by the Attorney General of Nebraska, Doug Peterson, who is a delight, and the Attorney General of New York, Letitia James, who is also a delight, both of whom are very busy people. So it was pretty great to even have a conversation with them, but, and the coordination of doing that took some doing, so I suspect might be a few other things going on in their lives.

Dina Kallay: Sure. Okay. Well, let's talk about international global a little bit. So we live in a global antitrust world, and then does NAG do any international policy and outreach work?

Gwendolyn Cooley: Yes, I suspect much to the alarm of everyone. That was one of my signature things was to create an international committee. We had for a long time a legislative committee because obviously we want to make sure that we know what's going on with federal government. Are they introducing new bills about, for example, regulating big tech, useful to know. Obviously, we want to know what states are doing so that we can monitor trends. Are people introducing abuse of dominance bills? Yes, they are. Okay, that's worth keeping an eye on. But then also I wanted to make sure that we were thinking about what's going on globally. Speaking of abuse of dominance, it's really important to know what's going on, both specifically with cases internationally, but also with legislation, the abuse of dominance provisions. I mentioned that, and if you are not aware of this, and for example, you don't live in New York, the abuse of dominance, bless you, is one of the things that certainly has been linchpin of European enforcement, and they, just to explain it for non antitrust, certainly if you are above a certain threshold in Europe, you're required to gatekeeper threshold, then you're required to submit to certain additional scrutiny.

That's my two second overview of abuse of dominance provision. New York, very controversially introduced one of these in the 21st Century Antitrust Act, and then a couple other states followed New York's threshold for that abusive dominance provision was 30%. That provision ultimately failed in the state legislature, but it was followed by one introduced in Minnesota with a 20% threshold, so much lower, and then Maine followed and introduced one with a 60% threshold. So you see the laboratories of democracy fully engaged, and I thought very important for the antitrust task force to just be aware of what's going on. Certainly if you have a state legislature that's coming up with an abuse of dominance provision, you need to know what that is in the first place. You also want to know, obviously if you, now I'll say I'm conflicted on the Google search case. Obviously I represented the state of Wisconsin on this case, but I would just say that I am sure, again, one more asterisk. I have not been part of any remedies discussions, so this is not any inside information, but I just want to note that I am sure that it would be important to know that the remedies in Europe on a choice screen, that is worth noting when you're contemplating how you're approaching remedies in the Google search case. Certainly you have to know what's going on in the world. It is, as you said, it is a global antitrust enforcement regime.

 Dina Kallay: It is, and as part of that international work, did the AGs file comments with other jurisdictions or feedback on what they want to do?

Gwendolyn Cooley: I am not aware of any AGs filing comments on other jurisdictions. It is much more of an incoming message telling us what's going on. Rather than we are telling you how you should do it, I certainly think that they might do that, but I would suspect would want to coordinate that kind of, so we still have the traditional international enforcement framework, which through the International Competition Network, the ICN, that is handled at the federal level certainly, but there is a lot for states to learn because we have this, we are the third leg of the antitrust enforcement stool. So we have the co-equal opportunity to enforce the antitrust laws. So we do need to know what's going on internationally, but the action of diplomacy that is squarely in the federal government's lap.

 Dina Kallay: Interesting. Okay, great. In my opinion. So we said 56 AGs, so is there any work done to increase convergence between the antitrust regimes of these 56 different ags?

Gwendolyn Cooley: So I'm so glad that you asked me this question because I have been chuckling about this question ever since you sent it over, and the irony of the Federalist Society asking for convergence amongst state AGs, but I mean, I'm teasing you, but that's part of the push pull, right? People want states to have to be close. State ags are the closest to the actual elected, or I'm sorry, the electors, right? So when a voter has a problem with a dairy merger, they are calling me. They're not calling the remote US Department of Justice Antitrust Division. They don't know who those people are, but they do know my phone number, and so they are calling to certainly give me an earful. And so that is why we have a Federalist System. Convergence is a possible to happen on some very small things, and particularly on logistical issues.

So I think the place that we're most likely to see it is in these merger notification HSR notification statutes. Currently, those statutes, those healthcare notification statutes are somewhat disparate. They have different thresholds. They have different things that they're looking for and different notification requirements and different timetables. There is a Uniform Law Commission proposal that has not yet been adopted, but it was only just, I think it was just voted out, or it's in the process of being voted out that allows states access to merger filings if they meet certain business thresholds for notification, and then there's a uniform reporting mechanism essentially creating a virtual one-stop shop for those forms. So those kind of logistical coordination things, that is, I think, where you're going to see convergence. The closest we actually have to convergence in state antitrust laws is through the National Association of Attorneys General, where we have defacto convergence because we're working together, but as a general matter, we are fully the state ags. So they, I guess now are fully embracing the Federalist principle of they are their own sovereigns, and so they get to do what their state legislature says they get to do.

 Dina Kallay: Right. Okay. I was thinking in a private sector head of how do we make our life easier in that sense?

Gwendolyn Cooley: I mean, as a brand new small business owner, OMG, I mean, so that's the tension, right? You want states because they're responsive, you want them to be doing it, but also doing anything across state lines is also, I have greater sympathy now than I ever did. Like, oh my goodness, what a pain. Right? So that's the complicated part.

 Dina Kallay: What you just told us, that on the dominance, I guess standard, there's different (inaudible).

Gwendolyn Cooley: Different numbers, and so not to pick on your company, but we will just say, for example, "Is your company, does it meet the dominance threshold in Minnesota? How close are you?" None of those bills passed, just so no one has a panic attack, but none of those bills have passed. Not Maine's, not Minnesota's.

 Dina Kallay: Okay. Well, so you've spent, what, almost 20 years with a state AG, right? And based on that, what do you think are the more serious antitrust problems or patterns that you see emerging that US enforcers state or federal need to focus attention on? What do you think?

Gwendolyn Cooley: Yeah, this was a really interesting question to contemplate. I think the number one trend I'm seeing is actually about enforcers and that it is the responsibility of antitrust enforcers to fix it, to be the regulator for all kinds of industries. And I think that that is unfortunate and a missed opportunity. I think certainly that it is Congress's job to be the one who tells in particular agencies who does what, and we in antitrust have a very specific tool that allows us to go at monopolies and things that substantially affect adversely competition. It's tough to bring every single thing into that realm. One of the more controversial things that I dealt with during my time as task force chair was ESG and the varying views on ESG that the state attorneys general had, and have one group of states thinking that ESG is inherently anti-competitive, and another states thinking that it's immune from antitrust enforcement.

And so that's a perfect example of how antitrust can't fix it, because you have two very different views of what antitrust can actually even do in that instance. And so that's why we see conversations of this has to be handled at a congressional level because there is no convergence, as we were just saying, there's no convergence on how to deal with that issue in the United States. Certainly it sounds like in Europe, that particular issue, that has a very different view. And then how do you, that ESG in Europe is more important in their regulatory regime? So it's very tricky. So I don't think antitrust can fix it. I think that's the biggest trend. I also think it's not just controversial issues like ESG, it's issues that we all agree on, high drug prices, the fact that by and large it is antitrust, that is the one that goes after things like high drug prices because with the only scalpel tool that we have, which is monopolization, Congress could pass some changes to the way the patent system works, to the way that drugs are priced to the way that Medicaid reimburses for drugs and on and on.

There are a lot of opportunities, and there have been a lot of bills over the years that have been put forward that would address some of these problems limiting reverse payments, but instead that stuff falls to antitrust. The other reason I think that that's important is because the idea that antitrust can fix it. There are 270 state attorneys general who do antitrust, state Assistant Attorneys General, who do antitrust across the country. That is not enough to be the cops on the beat, and certainly not enough to be the cops on the beat when each one of those people has to work for an attorney general who has to be seen to be doing the things. Lemme explain what I mean by that. So in state antitrust enforcement, you often see which, and I totally understand why this is, but you see a lot of bunch ball, right? Ever watched four year olds play soccer?Like, they're all jammed around the ball. And the reason for that is because the voters at home are saying, "I want you to be taking on so-and-so and so", and so, if somebody's taking on so-and-so then everybody needs to be taking on so-and-so, so you can't really play sophisticated game where, okay, I'm regulating this particular aspect and you're regulating that particular aspect, and we're complimentary because you're not, right? You're all responding to voters at home who all want very similar things. So that's the other reason why antitrust can't fix it, right? You don't have enough people to really fix it. So Congress could also enhance - the United States Congress could certainly enhance the numbers of people who are doing that at the federal level. You do see a little bit of that in the States with these statutes that have been passed, antitrust enhancement statutes, California recently, California has always been a heavy hitter in state antitrust enforcement. They recently had a legislative proposal that passed that is expanding their antitrust shop to 50 people, five zero. So that - that's pretty substantial.

 Dina Kallay: From how many now? What's the data?

Gwendolyn Cooley: It's been growing over the last few years, so I don't know what they started with, but I mean 20 maybe.

 Dina Kallay: Oh, wow. Okay.

Gwendolyn Cooley: More than double then. Yeah, probably get some text from a California person being like, "We had 23 people" or whatever it was, but it was not 50.

 Dina Kallay: Good. Somebody has their priorities right.

Gwendolyn Cooley: Exactly.

 Dina Kallay: Yeah. Okay, great. Well, so now that you've stepped down after almost two decades at the state AG, tell us a little bit about your new professional endeavors and adventures.

Gwendolyn Cooley: So I am doing a couple different things. The one thing that I've been working the most on comes partly from my time as chair, figuring out how we could use artificial intelligence to our advantage and not just, I felt like the approach to the conversation about artificial intelligence really focused on the competition aspects in artificial intelligence is bad, and therefore it needs to be regulated or looked at from a competition perspective. I was like, how can we use artificial intelligence to enhance competition? So I'm working on a tool right now, an artificial intelligence tool that will review mergers for competitiveness, but it is not live yet. So you can stay tuned, and I will have more updates on this. They're telling me that we will probably have it by Valentine's Day. I hope it is before then, but, so that's been basically my summer project. I'm very interested in artificial intelligence and not just the usual concerns about what's going on with the pipeline. Obviously that's very important stuff, but other people than me are handling that issue. So I will not play bunch ball, and I will think about other things with artificial intelligence.

 Dina Kallay: That's interesting. And I guess now that I've learned it will review mergers that software both for federal level and state level.

Gwendolyn Cooley: Yeah, yeah. It'll certainly, I mean, right. It'll just be a merger screen tool. So to help prioritize, I'm kind of a good governance scale. I just want to help antitrust enforcement agencies understand this one is likely to be bad, and this one is less likely to be bad. We'll provide a ranking on how anti-competitive something is. So just trying to make life easier for everyone, and certainly create a little bit of additional transparency for businesses as well, because that's extremely important. That's one of the problems with having a, if we're honest, it's one of the problems with having a diverse federal system of competing regulations is if you don't have transparency, then you don't have transparency, and that's a pain.

 Dina Kallay: Sounds like it is an exciting tool. Great.

Gwendolyn Cooley: If it works, and that's what we're hoping.

 Dina Kallay: Yeah. All right. Well, we can bring it to each other as a Valentine's Day gift (laughs). A merger software. Well, thank you so much for answering patiently and in great detail, answering all my questions. I think that was delightful. I've learned a ton.

Gwendolyn Cooley: Wonderful. My pleasure.

 Dina Kallay: Thank you. Edith, do you want to close us off or?

Edith Harold: Yeah. On behalf of the Federalist Society, thank you so much to Gwendolyn for speaking with us today, and Dina for moderating. We're so grateful for your time and expertise. Thank you also to our audience for joining us. We really appreciate your participation. You can stay up to the date with announcements and upcoming webinars on our website, fedsoc.org, or on all major social media platforms. Thank you once more for tuning in and we are adjourned.