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.

Companies that use price indices or benchmarking services should be aware that federal and state antitrust enforcement agencies will pursue benchmark manipulation as a violation of the Sherman Act. The DOJ and a bipartisan group of 17 state attorneys general recently reached a settlement of pricing benchmark manipulation allegations with three of the country’s largest egg producers. The settlement requires the producers to collectively pay $3.3 million and donate 53 million eggs to food banks and nonprofits.

Read the full Alert on the Duane Morris LLP website.

On February 10, 2026, Republican attorneys general from 10 states sent letters to 80 companies warning them that their participation in groups seeking to reduce plastic usage may constitute a violation of federal and state antitrust and consumer protection laws.  The letter campaign was led by Florida Attorney General James Uthmeier. 

Uthmeier’s office posted online a sample letter addressed to Costco.

The letters target companies the AGs believe to be members of one or more of three environmental organizations—the U.S. Plastics Pact, the Consumer Goods Forum, and the Sustainable Packaging Coalition—that allegedly seek coordination among the companies with the goal of reducing the use of plastics.  These organizations, the AGs allege, “pressure companies into artificially changing the output and quality of their goods and services,” thus distorting normal market forces.  Such initiatives, the AGs warn, may constitute “unlawful restraints of trade in violation of the Sherman Antitrust Act,” and their states’ antitrust and consumer protection laws.

Coordinated reductions in the output or quality of goods and services, under some circumstances, can be anticompetitive. 

The AGs put the companies on notice that they should expect “formal investigative demands, subpoenas, or other compulsory legal process” regarding their participation in these initiatives, and that they should preserve relevant documents, communications, and data.  

In addition to Florida, the letters were signed by the AGs of Georgia, Iowa, Kansas, Nebraska, North Dakota, South Dakota, Montana, Texas, and West Virginia. 

The letters are the latest example of a significant uptick in antitrust enforcement by state attorneys general across the country.

On December 19, 2025, a bi-partisan coalition of 23 state attorneys general submitted reply comments to the Federal Communications Commission (FCC) urging the agency not to issue any declaratory ruling purporting to preempt state and local laws that seek to govern or limit uses of Artificial Intelligence (AI).  The AGs stated that such a ruling would be beyond the FCC’s authority.

In its Notice of Inquiry, the FCC requested comment on the question “As [AI] begins to play a bigger role in the provision of communications services, should the Commission consider whether state or local laws seeking to govern or limit uses of AI are prohibiting or effectively prohibiting the provision of wireline telecommunications services?” Various commenters supported a declaratory rule preempting state or local laws regulating AI.  The state AGs’ comments were issued in reply to these comments. 

While acknowledging that AI is “a transformative technology with a number of promising uses,” the AGs claim that “[s]tates across the political spectrum are legitimately concerned about how businesses using AI may harm their citizens and/or interfere with their own core responsibilities.” 

The state AGs argue that AI is a broad and undefined term that encompasses a wide category of information services that are beyond the FCC’s jurisdiction to regulate and urge the FCC to “stand down and allow Congress to first decide what, if any, federal preemption of state (and local) regulation of AI is appropriate.” 

Examples of current or pending state and local laws that seek to govern or limit AI include laws involving:  AI-generated deepfakes and AI-generated explicit material; basic disclosures when consumers are interacting with specific kinds of AI; the setting of rents through the use of AI; new forms of consumer scams; ensuring identity protection for endorsements and other AI-generated content; and consumer opt-out of consequential automated decisions.

The state AGs argue that none of these laws is “remotely related to limiting the entry or operation of telecommunications networks.”

The reply comments follow a December 11 Executive Order by the President setting forth a national policy framework for AI and directing the FCC to initiate a proceeding to determine whether to adopt a federal reporting and disclosure standard for AI models that preempts conflicting State laws.

The reply comments are signed by the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Tennessee, Utah, Vermont, Washington and Wisconsin.

On November 13, 2025, Washington State Attorney General Nick Brown announced the formation of a unit in the state attorney general’s office focused on workers’ rights.  Attorney General Brown said the unit will help enforce already strong state laws protecting workers, including laws against wage theft.  The move is the latest effort by Democratic attorneys general to strengthen state enforcement of laws protecting workers in response to Trump Administration changes to federal enforcement that they allege have weakened worker protections. 

In September, Oregon Attorney General Dan Rayfield announced the formation of a “working families unit” in a new section of the state Attorney General’s Office designed to address “unfairness in the workplace,” in light of “federal rollbacks.”  At least 13 state attorney general offices now reportedly have such units, including California, Massachusetts, New York, the District of Columbia, Illinois, Michigan, Minnesota, New Jersey, Pennsylvania, Arizona and Colorado. 

Employers with operations in these states face potentially more significant enforcement threats from the state attorneys general than from private suits.  Attorneys general can pursue broad investigations and obtain consent orders requiring enhanced reporting or training in areas such as minimum wage, overtime pay, independent contractor classification, meal and rest breaks, recordkeeping and tipping compliance. 

On October 20, 2025, 20 Republican state attorneys general, led by Iowa’s Brenna Bird, wrote a letter to SEC Commissioner Hester M. Peirce, urging the SEC to provide “clear, narrowly tailored definitions regarding when a digital asset or related transaction constitutes a security under federal securities laws.”  The letter, sent in response to the SEC’s solicitation of public input on issues relating to cryptocurrency and digital assets, states that clarity is essential to prevent federal overreach which could negatively impact the AGs’ ability to enforce consumer protection laws in their states.

The AGs contend that the federal government has only limited powers to protect consumers, and that the states have primary responsibility over consumer protection and economic regulation.  In the absence of clear definitions, they argue, there is a risk of federal overreach, which could lead to preemption of important state laws that are specifically tailored to digital assets.  The AGs point out that at least 40 states have introduced or enacted legislation on digital assets–laws that provide regulatory certainty for businesses, allowing them to innovate, invest, and create jobs in their states.  The AGs argue that federal overreach could also preempt state money transmitter statutes, criminal laws, and consumer protection laws.

The AGs also argue that states’ unfair and deceptive acts and practices (UDAP) laws are better suited to protect consumers in the digital assets space than any federal law.  State UDAP statutes are broader than federal securities laws, they claim, allowing states to capture practices that may not qualify as securities violations. Finally, the AGs argue that clear definitions are necessary for states to determine whether it is lawful for them to enforce their unclaimed-property statutes.  Many states have laws that treat abandoned virtual currency as escheatable property that must be remitted to the state.  Because many states do not have digital wallets, they require the holder of unclaimed digital assets to “liquidate” those assets and then remit the cash to the state.  The AGs are concerned that such a transaction could constitute the unlawful sale of unregistered securities.

On October 1, 2025, the state attorneys general for Virginia, Arizona, Connecticut, New York, and Washington sued Zillow, Inc., and Redfin Corporation, two of the country’s largest online rental housing advertisers, over an agreement that the states claim eliminates competition for multifamily rental advertising between the two companies.  The complaint mirrors a complaint filed on September 30 by the Federal Trade Commission.

The states’ lawsuit, filed in the U.S. District Court for the Eastern District of Virginia, alleges that Zillow and Redfin executed an unlawful agreement to remove competition from the already highly-concentrated market for online apartment advertising.  Prior to the agreement, the complaint alleges, both Zillow and Redfin competed on online rental marketplaces—Internet Listing Services or “ILSs”—where consumers search for rental homes or apartments.  According to the complaint, on February 6, 2025, Zillow and Redfin entered into an agreement whereby Zillow paid Redfin $100 million to stop competing, to facilitate the transition of most of its multifamily rental advertising business to Zillow, and to shut down the remainder.  The complaint also alleges that Redfin fired most of its rentals salesforce, including those with key customer relationships, and agreed to help Zillow hire its pick of these employees.

The AGs allege that the agreement will result in reduced choice, higher prices, and reduced quality for multifamily rental advertising in their respective states.  According to the states, the agreement constitutes an illegal restraint of trade under Section 1 of the Sherman Act, and an illegal acquisition in violation of Section 7 of the Clayton Act.  The states seek an injunction providing structural relief such as “divestiture of assets, divestiture or reconstruction of businesses, and such other relief sufficient to restore the competition that would exist absent the anticompetitive conduct alleged.”

On August 18, 2025, attorneys general from 20 states and the District of Columbia sued the Trump Administration for tying the states’ receipt of crime victim funds to their assistance in the Administration’s immigration enforcement program.  The lawsuit, filed in the United States District Court for the District of Rhode Island, challenges recently imposed conditions on the states’ receipt of funds under grant programs established by the Victims of Crime Act, passed by Congress in 1984 to provide direct compensation and service programs to assist victims of crime.

The suit attacks conditions recently placed upon states’ receipt of funds by the Office for Victims of Crime (OVC), an agency housed within the United States Department of Justice.  In late July 2025, OVC issued notices to grant recipients specifying new immigration-related conditions on issuance of funding for FY 2025, including cooperation with, and assistance to, the United States Department of Homeland Security (DHS) in its immigration enforcement efforts. 

The states claim that these conditions are unlawful for a variety of reasons, including that they violate the separation of powers, the Spending Clause, the Administrative Procedure Act, and principles of federalism.  They claim that the conditions put the states in an untenable position: “either forfeit access to critical resources for vulnerable crime victims and their families, or accept unlawful conditions, allowing the federal government to conscript state and local officials to enforce federal immigration law and destroying trust between law enforcement and immigrant communities that is critical to preventing and responding to crime.”   Complaint, at 4.  The states seek an injunction against implementation of the conditions against them.

The lawsuit echoes the claims made in another suit by a group of 20 state attorneys general challenging similar immigration-related conditions on the state’s receipt of transportation grants.

The plaintiffs are the states of New Jersey, Rhode Island, California, Delaware, Illinois, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont and Washington and the District of Columbia.

On June 19, 2025, Chief U.S. District Judge John J. McConnell, Jr., of the District of Rhode Island granted a preliminary injunction to 20 states that had sued the U.S. Department of Transportation (DOT) and Secretary of Transportation Sean Duffy seeking to stop enforcement of an Immigration Enforcement Condition (IEC) that made transportation grants to the states conditional on their cooperation with federal officials in the enforcement of federal immigration law.  We previously posted a blog about the states’ lawsuit and a similar action against the U.S. Department of Homeland Security.

The states alleged that DOT has no statutory authority to impose the IEC as a requirement for federal funding that was appropriated for transportation; that the IEC violates the Spending Clause of the Constitution; and that, for various reasons, the DOT’s actions violate the Administrative Procedure Act (APA).  In granting the injunction, Judge McConnell held that the states were likely to succeed on the merits of some or all of their claims.  Specifically, the Court held that:

• The Defendants’ conduct violated the APA because they acted outside their statutory authority when Congress appropriated the funds for transportation purposes, not immigration purposes.
• The IEC is arbitrary and capricious and lacks specificity in how the states are to cooperate on immigration enforcement.
• The IEC violates the Spending Clause because “[t]he Government does not cite to any plausible connection between cooperating with ICE enforcement and the congressionally approved purposes of [the DOT].”
• The states will face irreparable and continuing harm–the loss of billions of dollars in federal transportation grant funds—if forced to agree to the IEC in order to receive the funds.
• The balance of the equities and the public interest favor granting the injunction, because without the injunction, there is a substantial risk that the states’ citizens will face a significant disruption in transportation services.

The Court’s order prohibits the Defendants from implementing or enforcing the IEC, or withholding or terminating federal funding based on the IEC.  The Court also denied the government’s request to stay the order pending appeal.