Author: Christopher H. Casey

State attorneys general are increasingly diverging from their federal counterparts when it comes to antitrust enforcement.  In several recent cases, instead of joining federal enforcers’ settlement agreements, state attorneys general have pursued their own claims after the federal settlement was reached.  Perhaps the most significant example of this trend is the Ticketmaster/Live Nation case, where the DOJ reached a settlement during the trial, but a group of more than 30 state attorneys general refused to join the settlement and continued on with the trial, achieving a jury verdict in their favor.  This enforcement split has led to several public statements by both federal and state enforcers in recent days.

On September 15, 2026, at the 20^th Annual Global Antitrust Enforcement Symposium at Georgetown Law School, Colorado Attorney General Philip Weiser stated that the federal government had become an “unreliable and inconsistent enforcer” of the antitrust laws.  Weiser pointed to examples where, he claims, the DOJ Antitrust Division had decided cases based upon political considerations rather than the merits.  He called on Congress to improve the protections of the Tunney Act, which requires judicial approval of DOJ civil antitrust settlements. 

Also speaking at the Georgetown Conference, the DOJ Antitrust Division’s Deputy Assistant Attorney General for Civil Mergers Charlie Beller stated that the Division was trying to continue supporting a system of “cooperative federalism” with state enforcers, but that federal enforcers must have primacy in large transactions with national or international significance.

Several days later, at Fordham Law School’s annual Conference on International Antitrust Law & Policy, the Associate Attorney General Stanley Woodward responded to Weiser’s comments, stating that when they seek alternative relief in antitrust cases after the DOJ has settled a case, state attorneys general are trying to undermine the work of the DOJ.  He said that these are attempts to “ignore, delay, frustrate, or quietly sabotage” the priorities of the president.  The DOJ is the “front-line national enforcer” for matters affecting the national economy, Woodward said, while the states play a central role in matters with local competitive effects.  He acknowledged, however, that federal and state enforcers work together far more often than they work against each other, and continue to cooperate on a number of antitrust investigations. 

Speaking at the same conference at Fordham, Elizabeth Odette, chair of the National Association of Attorneys General Antitrust Task Force, stated that recent examples of divergent enforcement by federal and state antitrust enforcers have occurred despite the states’ efforts to try to coordinate with their federal counterparts.  She sharply rejected the notion that state attorneys general operate as the federal government’s backstop.  In her view, states take some cases where the harm is specific to that state but are also free to decide to pursue other cases where the harm extends beyond the borders of the state.  As an example of effective state-federal cooperation, Odette pointed to the settlement reached with Cal-Maine Foods, Versova/Centrum and Hickman’s EggRanch, where three of the nation’s largest egg producers agreed to collectively pay $3.3 million and donate 53 million eggs to food banks and nonprofits to settle claims by DOJ and 17 state attorneys general that their pricing actions violated Section 1 of the Sherman Act.

 The debate over the proper role of state attorneys general in antitrust enforcement will likely continue.  In the meantime, companies with antitrust matters with national significance that may attract government scrutiny should prepare for both federal and state enforcement.

By  Sean P. McConnell, Christopher H. Casey and Kirk Williams McLeod

On June 29, 2026, in Trump v. Slaughter, the U.S. Supreme Court held that the president may fire Federal Trade Commission commissioners at will, ruling that the statutory “for-cause” removal protections for commissioners are unconstitutional. In doing so, the Court expressly overruled its 1935 decision Humphrey’s Executor v. United States and confirmed that principal officers who exercise executive power must be removable by the president at will.

Read the full Alert on the Duane Morris LLP website.

On April 15, 2026, a federal jury found that Live Nation Entertainment and its Ticketmaster subsidiary violated federal and state antitrust laws. The verdict holds critical lessons for any business relying on vertical integration, exclusive contracts, or data-driven strategies.

The jury concluded that Live Nation unlawfully monopolized multiple live entertainment markets by leveraging its dominant position in concert promotion, venue ownership, and ticketing to foreclose competition. Key evidence showed Ticketmaster controls approximately 86% of primary ticketing at major concert venues, while Live Nation’s promotion arm handles roughly 70%. Internal communications—including references to using a “velvet hammer” against competitors and exerting power over concert-goers by “robbing them blind”—proved particularly damaging.

Continue reading “States Win Antitrust Case Against Live Nation: Lessons from a Landmark Antitrust Case”

The Federal Trade Commission (FTC) has formed a Healthcare Task Force to focus on competition and consumer protection issues in healthcare markets and to develop policy recommendations aimed at improving healthcare market practices. The memorandum establishing the Task Force describes its mandate, structure and intended workstreams.

Implications for Healthcare Market Participants

The Task Force is intended to provide a more coordinated and systematic framework for the FTC’s work in this sector, aligning enforcement, research and policy to address emerging and persistent issues in healthcare competition and consumer protection.

The memorandum signals that the FTC will continue to prioritize healthcare as a core enforcement and policy area. Market participants – including providers, payers, intermediaries, and other healthcare entities – can expect:

• Continued scrutiny of transactions, joint ventures and contracting practices that may affect competition.
• Ongoing attention to representations and business practices that may mislead or harm healthcare consumers.
• Increased emphasis on policy development and advocacy that may shape future regulatory and enforcement approaches in healthcare markets.

Continue reading “The Federal Trade Commission Forms Healthcare Task Force to Address Competition in Healthcare Markets”

On May 1, newly-confirmed FTC Commissioner Mark Meador stated in a speech, and in a 33-page paper released the same day, that federal antitrust enforcers should be more concerned about underenforcement than overenforcement of the antitrust laws.  In the speech, to the Conservative Partnership Institute in Washington, DC, Meador made the case that conservatives should reject a “laissez-faire or libertarian approach to antitrust law,” and instead “embrace vigorous enforcement of the antitrust laws.”

Meador stated that the Clayton Act demands that the government err on the side of caution when assessing the legality of mergers, and that “[a] greater level of certainty should be required to excuse a merger that eliminates competition than to condemn it.”  Going further, Meador offered his view that, whether applied to political power or economic power, “big is bad.”

Meador was sworn in on April 16 as the third Republican commissioner.  While the other two Republican commissioners, Chairman Andrew Ferguson and Melissa Holyoak, have also signaled that the Commission will continue aggressive enforcement in certain sectors (such as technology), Meador’s speech is perhaps the most explicit sign yet that there will be very little if any slowdown in enforcement by the Trump Administration’s FTC.  But, as we have previously noted, the theories and means underlying this FTC’s enforcement priorities may still differ, even if the ends are closer than many anticipated.

Seeking to revive a criminal antitrust conviction, the DOJ last week filed its reply brief in support of a petition for certiorari asking the Supreme Court to hear its appeal of a Fourth Circuit decision overturning a 2022 bid-rigging conviction.  In the brief, the DOJ argued that the Fourth Circuit erred when it ruled that only purely horizontal agreements qualify as per se violations of the antitrust laws.   

The defendant, Brent Brewbaker, was an executive of an aluminum parts supplier, Contech.  The government alleged that Brewbaker submitted losing bids to the North Carolina Department of Transportation in an effort to help a downstream customer of Contech, Pomona Pipe Products, win the bid.  Brewbaker was convicted of bid-rigging, in violation of Section 1 of the Sherman Act, and fraud.  The Fourth Circuit upheld the fraud conviction but overturned the Sherman Act one, ruling that because it was not purely horizontal, the agreement between Contech and Pomona should have been reviewed under the rule of reason rather than the per se rule. 

The DOJ argued that the indictment alleged that Contech and Pomona were direct competitors in that they had submitted competing bids for aluminum structure projects, and the fact that the agreement also had a vertical component did not mean that per se treatment was unavailable.  The DOJ argued further that the Fourth Circuit’s decision conflicted with two Supreme Court cases, United States v. Socony-Vacuum Oil Co. and Palmer v. BRG of Georgia, where the Court held that agreements among competitors were per se unlawful even though those competitors also had vertical relationships.