Antitrust Year in Review and a Look Ahead to 2025

Merger enforcement   

In 2024, the FTC and DOJ achieved success with respect to merger challenges that were rooted in more traditional theories of competitive harm.  For example, in October 2024, following an eight-day trial in Manhattan federal court, the FTC successfully blocked  the merger between Tapestry, Inc. and Capri Holdings Limited, which would have combined Tapestry’s Coach, Kate Spade, and Stuart Weitzman brands with Capri’s Michael Kors, Jimmy Choo, and Versace brands.  The court’s decision rested on a traditional market definition theory: specifically, that the transaction was likely to substantially lessen competition in a market for accessible luxury handbags in violation of Section 7 of the Clayton Act.  

While the agencies did not abandon efforts to challenge transactions on the basis of the more novel theories of competitive harm that have been integral to enforcement in the Biden administration—such as alleging that a merger would negatively impact workers’ wages, benefits, and working conditions more generally—in the end, in those litigated cases where the government prevailed, the courts’ decisions were not based on these more novel arguments.  For example, despite the fact that the FTC’s challenge to grocery store chain Kroger’s proposed $24.6 billion acquisition of rival Albertsons included an allegation that the transaction would negatively impact employee wages and benefits by concentrating the market for union grocery store workers, the district court’s decision to block the transaction was not based on this theory of harm.  Instead, the court’s decision to block the deal relied on its finding that the proposed divestiture of certain stores to a competitor was “not sufficient” to maintain competition in the relevant market, and “the deficiencies in the divestiture scope and structure create a risk that some or all of the divested stores will lose sales or close.”² 

In the Southern District of New York, a federal judge adopted the 30% market share threshold proposed by the FTC (and recommended in the updated 2023 Merger Guidelines)³ to support the court’s decision to issue a preliminary injunction blocking global health care data provider IQVIA’s proposed acquisition of Propel, the operator of a health care advertising platform.⁴ The FTC’s case rested on both vertical and horizontal theories of harm, however the court limited its ruling to the horizontal claims, adopting the FTC’s definition of the relevant product market⁵ and finding that the FTC had established a presumption of anticompetitive effects on the basis of expert testimony that the proposed transaction would result in IQVIA controlling more than 30% of the relevant market.⁶

The agencies’ stance against traditional merger remedies stood strong in 2024: the FTC and DOJ did not enter into any consent decrees involving traditional divestiture or behavioral remedies in 2024. While DOJ held firm in its wholesale anti-remedy posture, the FTC majority embraced non-traditional remedies in a handful of cases. In two separate energy deals this year, the FTC voted 3-2 to approve the transactions on the condition that, post-merger, the CEOs of the target companies be prohibited from serving on the boards of directors of their respective merged firms.  In both cases, Republican Commissioners Melissa Holyoak and Andrew Ferguson (President-elect Trump’s nominee to serve as chair of the FTC in the next administration) issued dissenting statements criticizing the majority for filing complaints based solely on concerns that certain individuals may be elected to the board of the merged firm, and arguing that the majority failed to provide a reason why the transaction itself violates Section 7 of the Clayton Act.⁷

In addition, this year we saw a continuation of parties opting to “litigate the fix” by asking the courts to adjudicate whether their proposed divestitures or other remedies are sufficient to resolve the competitive concerns of the agencies. The Kroger/Albertsons trial was one such example of the parties trying their luck in the courts, in this case, unsuccessfully: the court in the Kroger/Albertsons case agreed with the FTC that the proposed divestiture package was insufficient to overcome the competition concerns raised by the FTC.⁸

We also saw the FTC embrace “fix-it-first” remedies, whereby the parties agree to voluntarily implement a structural solution that eliminates potential competitive effects in the transaction before closing.  The strategy – if successful—allows the parties to avoid entering into a formal settlement agreement or facing agency litigation challenging the deal.  In April 2024, the FTC issued a press release touting an outcome where the parties to an equity purchase agreement amended the agreement in response to antitrust concerns raised by the FTC and the Office of the Maine Attorney General.⁹

Competition in the labor markets 

Competition in the labor markets has been a key focus of the FTC and DOJ during the Biden administration.   The FTC’s rule banning non-compete agreements—which was finalized in April 2024 but set aside by a Texas federal court in August—will most likely be on the chopping block in a conservative-majority FTC.   The fate of the Non-Compete Rule faces one of several possible paths in the Trump administration.  The FTC in the new Trump administration could withdraw the rule, given skepticism that the FTC has authority to issue substantive rules in the first place.  The FTC could also abandon the appeal of the Texas court’s decision setting aside the new rule.  Or, new leadership at the FTC could choose to let the appeal run its course with the expectation that the Court of Appeals for the Fifth Circuit—or, potentially, the U.S. Supreme Court—will strike it down permanently and establish precedent limiting FTC competition rulemaking authority under the FTC Act.   

DOJ has also made efforts to advance its labor competition theories this year.  In September 2024, DOJ submitted a statement of interest¹⁰ in a private antitrust class action challenging labor policies in a major health system in Pennsylvania.  The lawsuit alleges that the health system acquired monopsony (buyer) power through a series of acquisitions, and used that power to  prevent workers from exiting or improving their working conditions, to suppress workers’ wages and benefits, and to drastically increase their workloads, and . . . lock employees into sub-competitive pay and working conditions”¹¹ in violation of Section 2 of the Sherman Act.   In its Statement of Interest, DOJ argued that Section 2 of the Sherman Act permits challenges to monopolistic or monopsonistic series of acquisitions, even if the same conduct would not be a violation of Section 7 of the Clayton Act.  DOJ’s statement is noteworthy because it applies the “series of acquisition” provision in the 2023 Merger Guidelines¹² to the labor context.      

Algorithmic pricing and AI 

In the U.S., most of the antitrust cases involving algorithmic pricing issues have, to date, been raised in private litigation in the real estate, health care, and hospitality industries.  However, in August 2024 DOJ, along with eight states, filed a lawsuit alleging that RealPage violated U.S. antitrust law by using data from competing landlords in an algorithm that generates pricing recommendations for rental properties.  On January 7, 2025 DOJ filed an amended complaint in its lawsuit against RealPage, naming six property landlords as co-defendants and adding the attorneys general of Illinois and Massachusetts as co-plaintiffs.¹³  The agencies have made it clear that any industry is fair game with respect to allegations about algorithmic price-fixing, and U.S. courts have been grappling with what the appropriate standard and legal framework should be to analyze these cases.  Although DOJ’s case against RealPage does not allege that the conduct is a per se violation of Section 1, DOJ, in court filings and public statements, has argued that using algorithmic software can be per se illegal under the antitrust laws.¹⁴ A federal district court judge in Washington State recently agreed: holding that per se treatment can apply to algorithmic pricing claims and denying a motion to dismiss based on allegations that operators of multifamily residential units provided commercially sensitive information to a revenue management software provider and implemented pricing recommendations generated by the software.

President-elect Trump nominates Gail Slater to head DOJ Antitrust Division, taps FTC Commissioner Andrew Ferguson to serve as Chair of the FTC 

President-elect Trump has nominated Abigail Slater to serve as Assistant Attorney General (AAG) of the DOJ Antitrust Division.  In a post on his social media platform Truth Social announcing her nomination, Trump said he expects Slater to “ensure that our competition laws are enforced, both vigorously and FAIRLY, with clear rules that facilitate, rather than stifle, the ingenuity of our greatest companies,” in order to “Make America Competitive Again!”   The announcement also signaled President-elect Trump’s intent to pursue antitrust enforcement related to Big Tech: Trump stated that the industry has “run wild for years, stifling competition in our most innovative sector” and is “using its market power to crack down on the rights of so many Americans . . .”¹⁵ 

Slater worked as an attorney at the FTC for nearly a decade, and subsequently served for four years as General Counsel for the Internet Association, a lobbying group that operated from 2012-2021 with a membership that included 40 of the world’s leading internet companies.  Slater also served on the White House Economic Counsel during President Trump’s first term, and in the private sector at technology and media companies.   Slater currently serves as the Economic Policy advisor to Vice President-elect JD Vance.  

For the top job at the FTC, President-elect Trump has nominated current FTC Commissioner Andrew Ferguson to serve as FTC Chair.  Trump also invoked Big Tech in his announcement of Ferguson’s promotion, touting Commissioner Ferguson’s “proven record of standing up to Big Tech censorship” and “protecting Freedom of Speech,” and pledging that he “will be the most America First, and pro-innovation FTC Chair” in history.¹⁶  Commissioner Ferguson has been an outspoken proponent of increased antitrust enforcement in Big Tech, stating that “I think the fundamental competition question for us is Big Tech” and that “coming to grips with the role that Big Tech plays in American markets and the role that the antitrust laws should play in protecting those markets and in ensuring that Big Tech sort of plays by the rules, I think, is like the fundamental question that the Commission is going to have to answer and that we as Americans need to answer.”¹⁷ Commissioner Ferguson has also outlined his concerns regarding dual-layer tenure protections for FTC Administration Law Judges, claiming that they “undermine self-government and empower the administrative state to the people’s detriment.”

Rounding out President-elect Trump’s picks for leadership positions at the antitrust agencies in his second administration is Mark Meador, who has been nominated to serve as FTC Commissioner.   Meador has experience working at both DOJ Antitrust Division and the FTC Bureau of Competition, and also served as Deputy Chief Counsel for Antitrust and Competition Policy for Senator Mike Lee (R-UT) when he was the senior Republican on the Senate Judiciary Antitrust Subcommittee.  Meador supports the promotion of free markets and competition through “zealous advoc[acy] for antitrust enforcement,”¹⁸ and is a strong supporter of increased antitrust enforcement of Big Tech.  He has been outspoken about the “dangers of concentrated economic power,” arguing that addressing this issue is a “secondary goal” of antitrust and advocating for competition enforcement that doesn’t lead to underdeterrence.¹⁹

With respect to the top job at DOJ, on November 22, 2024 President-elect Trump nominated former Florida Attorney General Pam Bondi to serve as Attorney General of the United States. During her time as Florida AG, the Antitrust Division for the State of Florida actively pursued both merger and conduct cases.  With respect to the former, under Bondi’s leadership, the state’s Antitrust Division joined multiple other states to challenge mergers in the health care and airline industries.  

Merger enforcement: traditional remedies are back on the table, future of 2023 Merger Guidelines is uncertain

The agencies’ stance against traditional merger remedies is expected to soften in the next administration.   Leadership will likely be more receptive to consent agreements and merger settlements that include divestiture packages, stemming the trend towards “litigating the fix” that has been a hallmark of merger enforcement during the Biden administration.  With the possible exception of mergers involving large tech firms, the FTC under Commissioner Ferguson’s leadership may be more “merger-friendly” than it has been in recent years: Commissioner Ferguson has reportedly committed to ending “Lina Khan’s war on mergers”, and has pledged to support “strong American companies that can beat foreign competitors.”²⁰

Fellow Republican FTC Commissioner Melissa Holyoak has said that, in her view, merger cases should be looked at “holistically” and remedies should be “kept on the table.”²¹ Commissioner Holyoak has also characterized the current FTC as having “made many missteps in its approach to merger review and enforcement.”²² As mentioned above, both Republican Commissioners have been critical of what they have deemed the current majority’s attempts to “leverag[e] its merger enforcement authority to extract a consent” even when the transaction itself does not run the risk of violating Section 7,²³ with commissioner Holyoak going so far as to accuse the majority of “wrongfully abusing its authority to extract consents[.]²⁴ The agencies in Trump’s second term are likely to walk back more of the novel policies and enforcement theories—including, but not limited to, a focus on the impact of mergers in labor markets, and heightened scrutiny of private equity—that have been a hallmark of the FTC and DOJ under the leadership of Chair Lina Khan and AAG Jonathan Kanter.  Instead, we should see a revived focus on the consumer welfare standard and other traditional theories of harm.

As for the 2023 Merger Guidelines, it is unclear to what extent the new leadership will work to rescind or reform them.  Commissioner Ferguson has said that he does not believe that the new merger guidelines should be “categorically rescinded,” arguing instead that “categorical rescission and starting over” does “not lend itself to agency credibility.”  While he has said that he thinks that much of what is in the new guidelines “is in fact restating stuff from previous guidelines and from the cases, and in that sense is sort of promoting predictability,” he considers other elements to be “pushing the envelope a little bit,” and he is open to reforming the guidelines.²⁵ Commissioner Holyoak has cited the new guidelines’ downplaying of economic evidence and reliance on “old case law” to support her view that in the new administration, the FTC and DOJ should “strongly consider” rescinding or revising the guidelines.²⁶

New FTC leadership may also consider rescinding the agency’s 2021 Statement on the Use of Prior Approval Provisions in Merger Orders (Prior Approval Statement), which provides that in all divestiture orders merging parties must obtain prior approval from the FTC before closing any future transaction affecting any relevant market for which a violation was alleged.²⁷ And at DOJ, under the leadership of Assistant Attorney General nominee Gail Slater, the Antitrust Division may opt to re-issue a version of the Merger Remedy Manual that was withdrawn in 2022.²⁸

Big Tech to likely remain in the agencies’ crosshairs

The heightened antitrust scrutiny on tech firms in the United States is unlikely to diminish significantly during Trump’s second term, at least in the near term.  It is doubtful that the ongoing DOJ and FTC monopolization cases against major technology companies in the U.S. will be abandoned outright by a Republican-helmed FTC and Antitrust Division.   DOJ AAG-nominee Slater has reportedly drawn praise from anti-monopoly advocates who view her “as an ally in their movement to bring tougher oversight on Silicon Valley giants.”²⁹  In addition, Commissioner Ferguson has reportedly³⁰ said that, as FTC Chair, he intends to “hold Big Tech accountable and stop censorship” by focusing enforcement against Big Tech monopolies and pursuing structural and behavioral remedies under the antirust laws “to make sure large platforms treat all Americans fairly and to prevent them from using their market power to box out new entrants and stymie innovation.”  Furthermore, in a December 2024 concurring statement, Commissioner Ferguson expressed his view that the FTC must “vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans’ ability to exchange ideas freely and openly,” including prosecuting “unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.”³¹ In addition, President-elect Trump’s nominee to serve as the third Republican FTC Commissioner, Mark Meador, has been outspoken about his concerns regarding the market power of Big Tech firms and the role of competition enforcement in the technology sector more generally.³²

Commissioner Ferguson’s comments on the consumer welfare standard may also shed light on his views regarding how the antitrust laws can be applied to Big Tech. Commissioner Ferguson has said that, while he believes that the “principal question” in antitrust cases is how a transaction will affect price and output, he does not think that the consumer welfare standard should be limited to these considerations.³³ He cites antitrust case law from the last fifty years that has considered “other aspects of competition that are at least related to price and output but aren’t price and output directly”—including “consumer choice and innovation”— to support this view. Commissioner Ferguson’s embrace of antitrust enforcement that takes into account non-price effects indicates that he may be willing to stay the course with respect to the FTC’s ongoing Big Tech monopolization cases, which are rooted in theories of harm that are not directly tied to price or output.  It also signals a potential willingness, at least theoretically, to pursue additional enforcement actions against tech firms and other platforms on the basis of harms that fall outside the bounds of what would be considered under the traditional consumer welfare standard.   

New areas of focus for federal agencies

While the antitrust agencies in Trump’s second term may be shifting their enforcement priorities, this may not result in a net reduction in the number of cases that see the light of day.  Instead, we may begin to see new targets stand in for old ones.  For example, Republican-led agencies will likely shift away from a focus on competition in the labor markets in their merger review analysis, and move towards applying the antitrust laws to other priorities, such as agreements regarding environmental, social and governance (ESG) and diversity, equity, and inclusion (DEI) policies and the alleged suppression of conservative voices on mainstream social media platforms.  In addition, Commissioner Ferguson has expressed concern regarding “collusion among asset managers with regard to whether companies that they have ownership takes in can invest in the fossil fuel industry,” specifically with respect to whether asset managers were "colluding to drive down investment in fossil fuels at a time when Americans are paying . . . an incredible amount of money for gas.”  Commissioner Ferguson said he thinks it is “odd” that this issue has “gone unremarked by the federal competition authorities for the last several years and one that I’m interested in the FTC exploring.”³⁴

To the extent that the federal agencies in the next administration pull back on certain enforcement priorities, we can expect State Attorneys General to pick up where they leave off.  This may include increased state enforcement related to competition in the labor markets, as well as state enforcement actions to block mergers that the FTC and DOJ decide not to challenge.  

New HSR filing requirements 

The new Hart-Scott-Rodino (HSR) Act rule—which was approved by the FTC in a unanimous 5-0 vote—is scheduled to become effective on February 10, 2025.  The effective date may be postponed by at least 60 days if President-elect Trump decides to issue a freeze on pending federal regulations or otherwise could be delayed if the rule is challenged in court.  The new rule is intended to address the increasingly varied types of transactions that come before the agencies in the course of the merger review process and were not anticipated by drafters of the original HSR Act, such as deals involving private equity firms, limited partnerships, and LLCs, and transactions potentially affecting innovation competition.   

The rule change does not affect reportability analysis—parties that were required to submit a filing under the current HSR Act will still need to file under the new rule.   It also will not change the 30-day waiting period or the amount of filing fees required to be paid by the parties.   However, it will impact what categories of information parties are required to disclose if and when they need to file.  All of these new disclosures will significantly increase the burden on filing parties for the majority of transactions.  We previously outlined the most significant changes parties to the HSR process that parties should anticipate when the rule becomes effective, not least of which is the likely 68 additional hours that are expected to be added to the average time it will take to prepare an HSR filing.    

Given the bipartisan support for the final rule at the FTC, it may have staying power in the new administration, at least to start.  In remarks at the ABA Antitrust Fall Forum in November 2024, Commissioner Holyoak said that, once the new rule takes effect, she will “analyze the effects of the rule” with respect to the types of burdens being placed on parties, and will look at whether the information being collected is actually assisting the agencies evaluate the competitive harm of proposed transactions.  She also said that she is committed to working with new leadership at the Antitrust Division to understand their perspective before deciding how to approach any potential changes to the new rule.  The FTC can then address any concerns with the final rule by overturning the rule under the Congressional Review Act, through a new formal rulemaking, or by issuing informal guidance through the FTC’s Premerger Notification Office as it has in the past.

What may not have staying power in the next administration is the FTC’s recently launched online portal, which invites the public to “submit comments on proposed mergers and acquisitions that may be before the FTC for review.”  Melissa Holyoak has called the portal “just the latest application of the Majority’s biases against mergers,” arguing that the constructions and prompts in the portal “are written to foreclose potentially positive opinions about the relevant merger and elicit only negative opinions.”³⁵

Section 5 of the FTC Act 

Under current FTC leadership, the FTC began to take a broader view of what sorts of claims could be advanced under Section 5 of the FTC Act’s prohibition of “unfair methods of competition in or affecting commerce.”³⁶ The FTC’s 2022 Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the FTC Act (Section 5 Policy Statement)³⁷ broadly interprets the agency’s authority to go beyond traditional antitrust violations to say that FTC does not have to demonstrate actual anticompetitive harm or market power in how it views conduct or merger enforcement.  

Commissioner Ferguson has suggested that he may take a more narrow view of Section 5, potentially in conflict with the current Section 5 Policy Statement.  Commissioner Ferguson has said that he believes that the Policy Statement “is correct that Section 5 is not limited just to violations of the Sherman and Clayton Acts,” and that when “the Section 5 claim I’m presented with is either a Sherman or Clayton Act violation or very closely tied to the sort of conduct that the Sherman and Clayton Acts prohibit, I feel pretty confident about Section 5. When we get away from that, I'm going to look at it more askance, going to conduct a more searching inquiry, and I'm going to spend more time playing with the text of Section 5 to ensure that I feel comfortable.”³⁸ While he has said that he is “open to the possibility that Section 5 proscribes things other than what the rule of reasonableness would generally proscribe,” he also cares about what “the spirit of the antitrust laws have to say” in order to ensure that the “FTC isn’t just sort of gallivanting across the land searching for monsters to destroy without trying to tie that sort of to the text.”³⁹

With respect to how new FTC leadership may use Section 5 of the FTC Act to target anticompetitive activity in the labor markets, as discussed above, the FTC’s rule banning non-compete agreements (one the first major actions brought under the 2022 Section 5 policy), is unlikely to survive in the new administration.  However, labor market agreements will likely still be subject to agency scrutiny and evaluated on a case-by-case basis.  In a December 2024 concurring statement, Republican FTC Commissioners Ferguson and Holyoak indicated that, where the record provides “reason to believe” that the anticompetitive effects of a company’s use of no-hire provisions in its customer contracts outweigh their procompetitive justifications, such provisions may be found to violate Section 5.⁴⁰ By contrast, Commissioners Ferguson and Holyoak dissented to a 2024 decision by the FTC majority ordering a building services contractor to stop enforcing a no-hire agreement prohibiting building owners from hiring contractor’s employees. In their dissenting statement, Ferguson and Holyoak stressed that the FTC “cannot issue a Complaint against a company based solely on a theory about hypothetical effects of no-hire agreements.   To lawfully invoke our enforcement authority, we must have a ‘reason to believe’ that Guardian’s no-hire provisions violate Section 5, not that no-hire provisions generally could violate Section 5.”⁴¹ These statement sheds light on how Commissioner Ferguson—armed with a Republican majority at the Commission—may pursue similar labor cases when he takes over as FTC Chairman later this year.