Heard at the 2025 Antitrust Law Section Spring Meeting

ANTITRUST ENFORCEMENT UNDER THE TRUMP ADMINISTRATION

• Federal Trade Commission (FTC) cases brought against Big Tech platforms are likely to continue under the Trump administration, although the reasons for continuing such cases and the alleged harms may shift. Former FTC Chair and Commissioner Maureen Ohlhausen emphasized that the new FTC majority may continue to focus on such cases due to the alleged harm that concentration in Big Tech has caused, such as reduced viewpoint diversity and suppression of conservative speech. Ohlhausen’s remarks align with comments made by new FTC and US Department of Justice (DOJ) leadership about increasing antitrust scrutiny on Big Tech.
• There are concerns about the rule of law and respect for the courts. The dismissal of the FTC’s two Democratic Commissioners, Rebecca Slaughter and Alvaro Bedoya, raised serious concerns at the Spring Meeting regarding the immediate and downstream effects of the potential overturn of Humphrey’s Executor, a landmark Supreme Court decision that established limits on the president’s power to remove officials from independent regulatory agencies like the FTC. If federal agencies are no longer seen as insulated from the political will of a president, they may lose the persuasiveness and deference they receive in court and from Americans nationwide. However, the FTC is not without political oversight in its current form, as it is subject to the authority of Congress, which controls its jurisdiction and existence. Despite this, panelists unanimously embraced the importance of the consensus-building nature of a bipartisan Commission.
• Antitrust enforcers expect a shift in attitude towards mergers. During the Capitol Forum/FGS Global program, FTC Chair Ferguson said he does not share the prior administration’s predisposition against mergers and believes long merger reviews under the prior administration led to uncertainty. He noted that the FTC retained the 2023 Merger Guidelines adopted under Biden to provide more certainty and clarity for the business community and to avoid politicizing the guidelines. The FTC will continue to scrutinize mergers, but according to Ferguson, the FTC will “get out of the way” more quickly for deals that do not harm competition.
• Section 2 Sherman Act enforcement is likely to persist. Many ongoing Section 2 cases are expected to keep the FTC and DOJ busy in the coming years. FTC Chair Ferguson is likely to increase the use of Section 2 in cases concerning alleged filtering of speech by Big Tech companies. However, the DOJ is unlikely to devote significant resources to criminal enforcement of Section 2.
• Robinson-Patman Act (RPA) enforcement is likely to continue at a steady pace. Panelists highlighted that Mark Meador, President Trump’s FTC commissioner nominee, has publicly stated that not enforcing the RPA at all “offends the rule of law.” Therefore, companies should not count on fewer RPA enforcement actions under the Trump administration. Similarly, in a dissenting statement from a recent enforcement action, FTC Chair Ferguson stated that the FTC “should focus its enforcement efforts on price discrimination in the heartland of the concern that animated the Act’s passage—large retailers with buying power.”

ANTITRUST AGENCIES’ PRIORITIES AND FOCUS 

Merger Review and Remedies 

• Agencies under the Trump administration are more likely to enter settlements and entertain fixes. At the Capitol Forum/FGS Global program, Assistant Attorney General Gail Slater, head of the DOJ’s Antitrust Division, said she wants to bring back merger remedies, especially structural remedies such as divestitures. FTC Chair Ferguson also noted that the government’s resources are limited, and he believes realistic remedies protect consumers, while refusing to engage with merging parties on remedies does not help consumers. In determining when to offer a fix, merging parties should consider the benefits of offering a remedy early to build credibility with enforcers and the court, prevent allegations of sandbagging, and maintain a consistent perspective on their proposed fix throughout the investigation. Roger Alford, a senior US DOJ official, highlighted the importance of “try[ing] to make [deals] as clean as possible” and noted that if the agencies can “fix a few pieces” to a merger, it allows the agency to move forward efficiently with a consent decree rather than engage in costly and protracted litigation.

• Non-price parameters weigh heavily in merger review. When evaluating a transaction, the antitrust agencies evaluate non-price parameters with equal attention and scrutiny as price-related aspects. Non-price parameters highlighted by the FTC, as well as enforcers from the European Commission, during the Spring Meeting included factors such as innovation, product features, product design, product quality, product safety, sustainability, better carbon emissions, labor, store conditions, and store experience, among others. The agencies made clear that innovation is not a defense to an anticompetitive transaction; they will conduct a balancing exercise between the anticompetitive harm and the benefits of the innovation. The FTC’s leaders disagreed with the assertion that non-price parameters are a mechanism to block a deal they oppose and explained that they merely follow the facts of the case and talk to customers and competitors to understand multiple facets of the industry.
• Healthcare mergers will receive continued and heightened scrutiny. Efficiencies arguments from merging parities in the healthcare industry are subject to scrutiny from regulators, who question whether mergers are the best method for achieving value-based care, even in cases of flailing firms. Commercial realities, including non-price concerns such as the impact on patient access and quality of care, are very important to regulators when reviewing healthcare mergers. State attorneys general indicated reliance on the involvement of several other state agencies and other sets of laws to regulate healthcare issues, such as offices of healthcare affordability to examine price issues, departments of insurance to understand the interplay of health providers and insurance companies, and even charitable trust laws to examine the transactions of nonprofit entities.
• Merger trials require fact-intensive efforts. When litigating antitrust agency challenges to mergers, it is important to make antitrust accessible to a district court judge who may not be as familiar with the practice. Judges urge practitioners to show their work – define all facts and arguments in detail and consider providing a glossary of straightforward definitions for antitrust terms, as well as terms related to the industry in which the merger is occurring. Judges also encourage practitioners to bridge the gaps in knowledge with use of expert witnesses. While experts know their field well, they can struggle to explain issues clearly to a judge. Therefore, practitioners should consider facilitating an informal conversation between the experts and the presiding judge to answer any questions and provide detailed executive summaries of expert reports using language appropriate for laypersons. In courts where antitrust case law is older, judges must work harder to figure out not only whether a transaction is anticompetitive but also what the appropriate standard of review is and where to draw the line. Judges highlighted that arguments in merger trials are most persuasive when parties recognize their weaknesses but still make a strong case for why their side should prevail.

State Enforcers Remain Active

• State attorneys general will continue to push the boundaries of the antitrust laws regardless of a change in the administration. Multiple state enforcers emphasized that they are unafraid to pursue antitrust actions even without the federal government. For example, state attorneys general are seeking to develop their state antitrust laws by bringing cases in state court. This is the case for states like New York, which has state antitrust laws based on federal antitrust laws, as well as states like Ohio and Texas, which have state antitrust laws that are not analogous to federal antitrust laws. State enforcers noted that bringing cases is often as important as winning them. Winning means protecting their citizens’ interests, while losing can identify a need for statutory change. States are frequently hiring outside counsel to assist with investigations and litigation.
• States to step in if federal merger enforcement subsides. Regarding the future of merger enforcement, Colorado Attorney General Phil Weiser emphasized that the states are ready to fill any gaps in federal enforcement, citing Colorado’s challenges (both jointly with federal agencies and independently) to many prominent mergers as evidence of the states’ capability and focus on antitrust. Elizabeth Odette, Minnesota’s assistant attorney general for antitrust  and chair of the National Association of Attorneys General’s Antitrust Task Force, said parties should not overlook state enforcers and noted that state enforcers across the country are increasing their antitrust enforcement capabilities.
• Federal enforcement agencies may defer to state enforcers when the conduct is of a local nature. However, states may also, on their own, bring cases that are within the traditional purview of the federal enforcers. For example, the Colorado attorney general sued separately in state court to block a merger between two large national grocery retailers. Suing separately allows the state attorneys general to bring other claims not addressed by federal enforcers (e.g., an alleged no-poach agreement in the grocery retailer merger).
• An increase in civil cases and a decrease in criminal cases is generally expected. Due to the significant decline in DOJ criminal antitrust enforcement, states with robust antitrust enforcement programs, like California and New York, plan to continue bringing cases focused on bid rigging and price-fixing. However, most states do not have the resources or leniency programs to investigate national cartels.

Noncompetes

• The future of the FTC noncompete rule is uncertain. FTC Chair Ferguson believes the FTC should reconsider its defense of the FTC’s April 2024 noncompete rule, which, per an August 2024 court order, cannot be enforced and remains subject to appeal. The rule would have banned existing and new noncompete agreements between employers and employees. The FTC claims the noncompete ban would lead to more innovation, more startups, and higher earnings for American workers. If the FTC abandons its defense of the rule, other groups, such as the Small Business Majority, may move to intervene to continue the fight on appeal. If the rule is eventually found to be unlawful on appeal, however, there are still many states – such as California, Minnesota, and New York – that already have laws or are actively working on legislative efforts to prohibit noncompetes, with which employers will still need to comply.
• Despite his dissent, FTC Chair Ferguson still sees value in enforcing unlawful noncompetes. Chair Ferguson noted that while he dissented from the FTC’s noncompete rule banning employee noncompetes, he does plan to vigorously enforce unlawful noncompetes. He observed that the traditional “rule of reason” approach can distinguish between noncompetes that have benefits and those that harm competition. Ferguson believes this is an opportunity to protect American workers.

Consumer Protection

• Price transparency is at the center of consumer protection enforcement. With recent FTC rulemaking and priorities, the Commission is focusing on enforcing hidden and junk fees, advertisements for free goods or services, and bait-and-switch practices. Last week, the Trump administration strongly endorsed the new junk fees rule by issuing an executive order relating to price transparency throughout all stages of purchasing a ticket to promote competition law enforcement  and better protect fans from exploitative ticket scalping.
• Deceptive and misleading influencer product endorsement and consumer reviews remain a high priority for enforcement. Following the 2023 updates to the FTC’s Endorsement Guides, the Commission issued an explicit ban on fake reviews. State enforcers are also cracking down on fake consumer reviews. If an individual advertises a product or leaves a review of a product, they must be an authentic user of the product. If someone portrays themselves as an expert, they must have a special kind of expertise to be able to comment on certain products or services. Additionally, a recent National Advertising Division decision held that a product demonstration constitutes an endorsement. If there is a material connection (i.e., the advertiser received free product, was paid, or has some other connection to the brand), the endorser posting the advertising content must include a disclosure indicating as such.

• The Trump administration will take a different approach to consumer protection but remain active  in enforcement. FTC Chair Ferguson is very dedicated to the consumer protection agenda of the Commission, although we are likely to see more enforcement action and less rulemaking or rule-driven activity. Enforcement of consumer protection issues at the state level is also expected to increase.