State Antitrust Enforcement: A Continued Focus on Competition During the New Administration

With the coming of the new presidential administration, state antitrust enforcement is poised to intensify. We expect both Republican and Democratic Attorneys General (AGs) to actively pursue antitrust investigations and litigation. They will fill in where the U.S. Department of Justice and Federal Trade Commission reduce focus but are also sure to work, including on a bipartisan basis, with their federal counterparts. Below, we explore how state AGs are likely to shape the antitrust landscape in the coming four years, and the areas where we anticipate significant enforcement activity.

State reaction to changing federal priorities

Democratic AGs are likely to increase efforts in areas where the federal authorities reduce focus.

Much as in the last Trump administration, Democratic AGs can be expected to pursue enforcement in areas that are not priorities for the federal government. Colorado AG Weiser, for example, has vowed independent action if necessary to uphold antitrust and consumer protection laws. California AG Bonta and Michigan AG Nessel have also underscored their commitment to bringing antitrust enforcement actions regardless of whether the new administration chooses to do so.

During the last Trump administration, AGs brought high profile suits where the DOJ and FTC chose to settle or forgo enforcement. A prime example of this was several Democratic AGs’ challenge to the T-Mobile-Sprint merger after the DOJ and several Republican AGs settled. That trend continued even into the Biden administration, with states showing an increased willingness to litigate antitrust cases independently. For example, Colorado and Washington each brought independent state-court actions to challenge the proposed Kroger-Albertson’s merger, even where the FTC and other states brought a separate suit in federal court.

We expect the trend of independent state enforcement to intensify in reaction to federal policy shifts. For example, Democratic AGs are likely to continue to focus on labor market issues, including in assessing potential harms from mergers and in challenging non-compete agreements. We also expect a continued focus on home healthcare and hospital mergers such as the Minnesota AG’s investigation into the Essentia Health and Marshfield Clinic Health System merger, and on transactions and issues affecting consumer goods and services.

Another likely focus of Democratic AGs will be litigating merger cases where federal enforcers are willing to accept behavioral remedies. Whereas the FTC’s Republican Commissioners have indicated a willingness to accept more behavioral remedies (e.g., temporary price caps or sharing of technology licenses or facilities with competitors), Democratic AGs are likely to either insist on structural remedies (e.g. divestitures) or refuse settlement altogether where they believe mergers to be anticompetitive.

Republican AGs will likely be emboldened to use antitrust law to advance anti-ESG and DEI efforts.

Some Republican AGs recently have used antitrust law in novel ways to challenge conduct and agreements perceived as inconsistent with their political positions, particularly efforts related to ESG initiatives. For example, in late 2024, eleven Republican AGs sued three of the world’s largest asset managers, alleging an antitrust conspiracy to restrict coal output related to their commitments to carbon output reduction. As explained in more detail in this client alert, the AGs’ antitrust and consumer protection suit follows a series of cease-and-desist letters and demands for information by many Republican AGs, as well as a lengthy congressional investigation accusing sustainability-focused investors and climate activists of forming a “climate cartel.”

Republican AGs are likely to continue to pursue new anti-ESG and DEI actions and other similar innovative efforts during the term of the new administration and may provide leadership for future state-federal joint enforcement efforts.

Republican and Democratic AGs will continue to work together even in the absence of federal collaboration.

The difference in state and federal enforcement priorities is not solely partisan. While partisan divides exist, state AGs have historically demonstrated their ability to work together in pursuing antitrust cases, even where federal agencies do not. For instance, since 2016, the Connecticut AG has led a bipartisan coalition of nearly every U.S. state and territory in prosecuting three antitrust complaints targeting alleged price-fixing schemes in the generic drug industry. Although the DOJ conducted some limited related criminal enforcement actions, the bipartisan state effort has been much more aggressive.

Democratic and Republican State AGs are likely to continue to work with federal agencies, especially focusing on technology platforms.

During the first Trump Administration, State AGs and the federal agencies cooperated extensively on enforcement efforts against large technology companies. Prominent examples of suits filed at the end of that administration with robust bipartisan AG groups working collaboratively with the federal government include the multistate and FTC cases against Facebook/Meta relating to the acquisitions of WhatsApp and Instagram and other joint enforcement actions against tech platforms.

President-Elect Trump and his nominees for leadership of the DOJ Antitrust Division and FTC have expressed their intention to continue to focus on perceived abuses by the large technology companies in the coming administration. In announcing his intention to appoint Gail Slater to lead the DOJ’s Antitrust Division, Trump stated: "Big Tech has run wild for years, stifling competition in our most innovative sector and, as we all know, using its market power to crack down on the rights of so many Americans, as well as those of Little Tech!" Trump’s picks for FTC chair (Andrew N. Ferguson) and the FTC’s third Republican Commissioner (Mark Meador) have further underscored the incoming administration’s focus on Big Tech, especially in the context of content censorship. Although their reasons may differ, we expect that Democratic AGs will continue their focus on antitrust issues in technology sectors and partner with the federal government where their interests align.

State AGs will continue to be key players in antitrust enforcement over the coming four years, whether acting independently or in parallel with federal agencies. Businesses should prepare for heightened scrutiny at the state level.

For more insights on state antitrust enforcement, contact our State AG or Antitrust and Competition teams or visit our State AG blog for the latest updates and analysis.