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 20th 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.
