One year into Trump 2.0, enforcement agenda of U.S. antitrust agencies continues to evolve

Divestitures and other merger remedies are back on the table at the FTC and DOJ

As anticipated, the transition to the second Trump administration has ushered in a much more favorable antitrust enforcement climate for M&A. As we discussed in a previous client alert, under the leadership of FTC Chair Andrew Ferguson and DOJ Antitrust Division Assistant Attorney General (AAG) Gail Slater, the agencies have embraced both structural and behavioral remedies to resolve anticompetitive concerns about potential mergers. In 2025, the agencies entered into several consent agreements that include both structural remedies (i.e., the divestiture of certain business units to resolve competitive concerns) as well as behavioral (or conduct) remedies. This represents a notable shift from the Biden administration, which saw the Democratic-led agencies more often opting to sue to block a merger rather than run the risk of accepting settlement agreements that might fail.

Litigating the fix remains an option  

The renewed willingness of the agencies to resolve merger concerns via settlement agreement means there was less need for parties to “litigate the fix” to a challenged merger in court. Litigating the fix is a practice where, after the reviewing agency rejects a divestiture or other proposal by the parties, the parties raise the proposed divestiture to the district court during the merger litigation. The district court is then tasked with evaluating whether and how the divestiture resolves any anticompetitive concerns with the merger. The government's record of success in these cases has been underwhelming, with merging parties more often than not successfully convincing courts to accept their proposed “fixes” in lieu of blocking the transaction.

Despite these odds, the Trump FTC did take its chances on litigating the fix in its March 2025 challenge to the proposed $627 million merger of GTCR and Surmodics, two of the country's largest providers of outsourced hydrophilic coatings. The court rejected the FTC's argument that the parties' proposed remedy would fail to offset the likely competitive harm of the proposed acquisition, finding instead that the proposed divestiture would allow the divestiture buyer to “vigorously compete” in the relevant market. The court's decision in In re: GTCR BC Holdings, LLC and Surmodics, Inc. may serve to reinforce the agencies' current preference to embrace settlements rather than test their luck in court.

Note, however, that on January 9, 2026, in a case without any “litigated fix,” a federal judge in the District of Columbia granted the FTC's motion for a preliminary injunction to pause medical device maker Edwards Lifesciences's proposed acquisition of rival JenaValve Technology while the FTC's merger challenge is fully litigated.

FTC sets aside Biden-era consent agreements 

In a rare move last summer, the FTC voted to reopen and set aside two merger consent agreements finalized by the agency in January 2025, just days before President Trump took office. The consent agreements related to acquisitions by large energy companies, and mandated that the CEOs of the target companies be prohibited from serving on the boards of directors of their respective merged firms (among other relief). The FTC voted to set aside both agreements on the basis that the Biden-era complaints failed to plead a violation of either Section 7 of the Clayton Act or Section 5 of the FTC Act, included no allegations that the acquisitions would be anticompetitive, and disregarded the FTC's Merger Guidelines and “decades of precedent.”¹

DOJ merger enforcement decisions face allegations of political influence, trigger Tunney Act proceeding

Over the past year, two merger decisions by DOJ have triggered scrutiny and allegations of potential political influence.

In the first, in June 2025 DOJ accepted a proposed settlement agreement that includes both structural remedies and behavioral commitments from the merging parties. Shortly thereafter, two DOJ officials left their jobs, reportedly for opposing the settlement. In an August 18, 2025 speech, one of those former officials, former Principal Deputy Assistant Attorney General Roger Alford, cited the proposed consent agreement as an example of the “pay-to-play” approach to antitrust enforcement that he says he witnessed in the Trump DOJ, which purportedly extended beyond legitimate lobbying functions and undermined the rule of law.

The proposed settlement is now subject to approval by Judge Casey Pitts in federal court in the Northern District of California under a Tunney Act proceeding. As we discussed in a previous client alert, during a Tunney Act proceeding a court is tasked with evaluating whether a proposed consent decree is in the public interest. The proceeding is usually a relatively perfunctory exercise resulting in the approval of the settlement agreement at issue. However, in October 2025, Attorneys General for twelve states and the District of Columbia filed a Motion to Intervene on the basis that the agreement includes “wholly deficient remedies” and was the “product of undue influence by well-connected lobbyists.”² The court is currently considering whether to hold an evidentiary hearing on the motion, which is a relatively rare occurrence in a Tunney Act proceeding.

The proposed settlement has also faced criticism from Democrats in Congress, who, in letters to DOJ and Judge Pitts, have expressed concern about the process that led to the settlement and the sufficiency of the terms of the settlement, and asked the court to hold an evidentiary hearing in the Tunney Act proceeding to “apply much-needed sunlight” to the particulars of the settlement in order to provide the public with “access to information it deserves to know.” 

The second DOJ action to draw scrutiny and allegations of political interference is the agency's July 2025 motion to dismiss unconditionally its January 10, 2025 complaint seeking to block a proposed $570 million merger of corporate travel management companies. DOJ had alleged in the complaint – which was filed at the end of the Biden administration—that the deal may substantially lessen competition or tend to create a monopoly in the sale of business travel management services to US global and multinational customers.

DOJ cited prosecutorial discretion as a rationale for dismissing the case but otherwise provided no explanation about the motivations behind its decision. Democratic Senators claim that the dismissal “raise[s] several questions about whether undue influence contributed to the DOJ's decision to drop the case, and whether the dismissal was part of a larger coordinated effort to avoid scrutiny of the influence and power that consultants and lobbyists are exercising in the Department's decision-making surrounding antitrust cases.”  It is unlikely that we will get further information about the rationale behind the government's decision to dismiss this case, given that there was no settlement to be assessed by a court.

HSR Act enforcement

Although many had hoped that the Biden-era changes to the Hart-Scott-Rodino (HSR) Act filing requirements would be rescinded by the Trump FTC, the new rules that took effect on February 10, 2025 remain in place. As we have discussed in a previous alert, the new rules expand the information and document disclosures filing parties must include in their HSR filings, and have increased the time and cost of preparing HSR submissions: in addition to requiring parties to submit additional transactional documents and new ordinary course documents, the new form requires parties to provide descriptions of overlapping products and services, supply relationships, and the strategic rationale for the transaction. The parties must also identify any related international antitrust filings, provide additional information about minority shareholders or interest holders, and disclose certain officer and director relationships, foreign subsidies, and defense contracts. Filing parties should allow additional time to prepare their HSR filings and work with counsel early in the transaction timeline to identify substantive overlaps with the other party as that impacts the scope of required disclosures.

DOJ has been increasingly vocal about the potential consequences of failing to comply with HSR filing requirements. In an August 2025 speech, AAG Slater said that the Division has created a “Comply with Care” task force seeking to “better understand the ways in which our [antitrust enforcement] process was being challenged by problematic tactics from outside lawyers and law firms,” including with respect to compliance with HSR filing requirements.³ She highlighted the $1.1 million civil penalty –included as part of a broader DOJ merger settlement agreement— imposed on a merging party for failing to produce certain documents in response to a Second Request. In addition, DOJ is continuing to litigate a case filed by the agency at the end of the Biden administration in January 2025 alleging that a private equity firm and more than a dozen of its investment advisors and funds failed to comply with various requirements of the HSR Act in more than sixteen separate transactions. Among other things, DOJ alleges that the companies altered/failed to include required documents in certain HSR filings, and in two cases failed to make any timely HSR filing. DOJ claims that the maximum penalty for the alleged violations exceeds $650 million.  

AAG Slater has also warned against “privilege abuses and privilege log gamesmanship” that provide inadequate bases for privilege claims, noting that such abuses are grounds for enforcement actions and sanctions motions.

New state premerger notification laws take effect in Washington, Colorado

Over the summer, state laws came into effect in Washington and Colorado requiring certain parties that submit HSR premerger filings to concurrently submit their HSR flings to the respective state attorney general (AG). These “mini HSR Acts” are based on the Uniform Antitrust Premerger Notification Act (UAPNA), a model premerger notification law approved by the Uniform Law Commission (ULC). The UAPNA is meant to create “a simple, non-burdensome mechanism for a state AG to receive access to [HSR] filings at the same time as the federal agencies.”  While several states currently have laws requiring parties to file premerger notifications for certain healthcare transactions, the UAPNA provides states with a model premerger notification law that is not limited to specific industries.

A handful of additional states are considering similar legislation based on the UAPNA, including Hawaii, West Virginia, California, and the District of Columbia. In New York, the state legislature is considering a bill that would go beyond the requirements of the UAPNA and require “any person conducting business in the state” to concurrently submit HSR filings to the New York AG. The legislation would also require the New York AG to consider a transaction's impact on labor markets and establish a process to allow affected workers and their representatives to comment on a proposed transaction.⁴

Republican FTC and DOJ use antitrust laws to combat the purported censorship of conservative viewpoints, target DEI initiatives

President Trump's political priorities guided the enforcement agenda of the U.S. antitrust agencies in 2025, with the FTC and DOJ showing a willingness to apply the antitrust laws in novel ways to address conduct that falls outside of the ambit of typical antitrust enforcement.

For example, AAG Slater and Chair Ferguson have made good on their promises to effectuate President Trump's “America First” agenda by using the antitrust laws to target the perceived censorship of conservative ideas by technology platforms and advertisers. In February 2025, only a month into Ferguson's tenure as FTC Chair, the FTC launched a public inquiry and issued a Request for Information (RFI) “to better understand how technology platforms deny or degrade users' access to services based on the content of their speech or affiliations” to “help the FTC better understand how these firms may have violated the law by silencing and intimidating Americans for speaking their minds.”⁵ According to Chair Ferguson, the  “fundamental question that the [FTC] is going to have to answer” is  what role “the antitrust laws should play in protecting [the “marketplace of ideas”] and in ensuring that Big Tech . . . plays by the rules . . .”  The FTC is also reportedly investigating alleged collusion among advertising and advocacy groups related to purported agreements not to advertise on certain conservative media platforms.⁶ 

AAG Slater has also warned against the harm to competition caused by “companies abus[ing] their market power to block out and deplatform independent voices and protect legacy media . . . .”  She pledged that DOJ “will always defend the principle that the antitrust laws protect free markets, including the marketplace of ideas.”

In June 2025, the FTC announced a proposed merger consent order to resolve allegations that the proposed merger of two large media buying advertising agencies would meaningfully increase the risk of coordination in the “media buying services” market. The consent agreement prohibits both companies from entering into any agreement that “hinders advertising based on political or ideological viewpoints. . .”⁷ The fact the consent agreement is limited to behavioral remedies is particularly noteworthy because Chair Ferguson has warned that such remedies should be treated with “substantial caution.” 

Eliminating diversity, equity and inclusion (DEI) programs is another pillar of President Trump's second term agenda, evidenced by the issuance shortly after his inauguration of an Executive Order “Ending Radical and Wasteful Government DEI Programs and Preferencing.”  Following that E.O., FTC Chair Ferguson issued a statement calling DEI “a scourge on our institutions” and a “pernicious ideology.”  In March 2025, the FTC announced the creation of a Joint Labor Task Force tasked with rooting out “collusion or unlawful coordination on [DEI] employment metrics.”

FTC and DOJ use the antitrust laws to target ESG initiatives

The antitrust agencies in Trump 2.0 are seeking to use the antitrust laws to invalidate certain corporate initiatives on the basis that they “harm competition under the guise of ESG.”⁸   For example, in August 2025 the FTC announced that it closed its investigation into whether the “Clean Truck Partnership” (CTP) that several truck and engine manufacturers and their trade association entered into with the California Air Resources Board (CARB) violated the antitrust laws. The CTP was launched in June 2023 and committed the signatory manufacturers to reduce the output of certain internal-combustion engine (ICE) vehicles in favor of electric alternatives. In a statement, the FTC cited the “obvious” antitrust concerns stemming from the CTP, specifically that “a group of competitors controlling essentially all of a market contemporaneously signed a self-styled ‘Agreement' under the auspices of government that contains caps on the sales of certain products in that market and collectively adopted emissions limits that, in practice, would similarly limit production.”  The FTC said that, since it had secured commitments from four leading truck and engine manufacturers (OEMs) to “jettison the CTP and refrain from similar conduct in the future”, no further action by the Commission was warranted.

The FTC's investigation overlapped with a lawsuit filed by the Attorney General of Nebraska in 2024 against four OEMs in Nebraska State Court alleging that the CTP is “nakedly anti-competitive” and should be invalidated. In August 2025 Nebraska AG Mike Hilgers announced that the lawsuit had been resolved and that the defendant OEMs agreed to declare the CTP to be “void.”

Deregulation

Following President Trump's January 2025 Executive Order on Unleashing Prosperity through Deregulation, in March 2025 DOJ announced the launch of an Anticompetitive Regulations Task Force to “advocate for the elimination of anticompetitive state and federal laws and regulations.”  The FTC launched a public inquiry into the impact of federal regulations on competition the following month, and in September 2025 the agencies announced that they had identified over 125 anticompetitive regulations “that distort markets and stifle competition.”  While the full list of purportedly anticompetitive regulations has not been released, the FTC said that it includes regulations in the transportation, education, and agriculture industries.

In August 2025, in a White House policy decision more directly targeted at antitrust enforcement policy, President Trump revoked President Biden's expansive Executive Order on Promoting Competition in the American Economy. AAG Slater and Chair Ferguson framed the revocation as a win for free markets and a welcome rejection of the “overly prescriptive and burdensome approach” to antitrust enforcement under the Biden administration. AAG Slater also used the revocation as an opportunity to highlight DOJ's efforts to promote what she has termed an “America First Antitrust” policy characterized by “empowering the American people in the free markets [and] not enabling regulators and bureaucrats to prescribe outcomes.”⁹

Supreme Court considers whether President Trump has the power to remove FTC Commissioners without cause

In 2025, President Trump moved full steam ahead in his efforts to exert control over independent agencies, which has put the future of FTC independence in the hands of the majority-conservative U.S. Supreme Court. The Court is currently weighing whether Democratic Commissioner Rebecca Slaughter should be reinstated as an FTC Commissioner after being fired by President Trump in March 2025.¹⁰  The government argues that the FTC Act – which only allows the President to remove an FTC Commissioner for “inefficiency, neglect of duty, or malfeasance of office”—violates the President's Article II power. The Trump administration is asking the Supreme Court to overturn Humphrey's Executor v. United States,¹¹ a 1935 Supreme Court case that upheld for-cause removal protection for FTC Commissioners. Slaughter argues that the President's Article II power is not unlimited, and that Humphrey's Executor should not be overturned. The Supreme Court held oral argument in Trump v. Slaughter in December 2025, and a decision is expected later this year. In February 2025 Chair Ferguson was quoted by Axios as saying that he agrees with the Trump administration that “Humphrey's Executor was wrongly decided” and should be overruled, calling the decision “deeply anti-democratic.”

Since November 2025, as a result of President Trump's dismissal of Democratic Commissioners Slaughter and Bedoya, and the subsequent resignation of former Republican Commissioner Melissa Holyoak, the FTC has been operating with only two Commissioners: Republican Chair Andrew Ferguson and Republican Commissioner Mark Meador. On January 13, 2026 the White House announced that David MacNeil has been nominated to replace Holyoak as an FTC Commissioner. MacNeil, who is not an attorney, is the CEO of Illinois-based automative accessories manufacturer WeatherTech. He is a longtime Republican donor and has been vocal in support of initiatives promoting manufacturing in the United States. President Trump has not nominated any proposed Democratic Commissioners.

Federal algorithmic pricing jurisprudence continues to develop

The antitrust team at Hogan Lovells has been closely monitoring ongoing developments in algorithmic pricing antitrust cases, where principles are beginning to emerge from a series of federal court cases regarding what sort of concerted action involving algorithmic pricing may be successfully challenged under the U.S. antitrust laws. Most recently, DOJ entered into a settlement agreement with real estate services company RealPage to resolve allegations that the company violated Sections 1 and 2 of the Sherman Act by leveraging competitively sensitive nonpublic data collected from co-defendant multifamily landlords to generate rental pricing recommendations and maintain a monopoly in the commercial revenue management software market.¹² DOJ's settlement with RealPage does not broadly enjoin the use of algorithmic pricing tools that allow third parties to make pricing recommendations. Instead, DOJ imposed varying levels of prohibitions on RealPage's use of competitor firms' competitively sensitive information (CSI) based on whether the CSI is public and whether it is being used in RealPage's runtime operations or to train revenue management software models.

State laws regulating algorithmic pricing take effect

The states continue to pave the way on the legislative front, passing laws regulating certain uses of algorithmic pricing. In California, Governor Newsom signed a law in October 2025 amending the state's Cartwright Act to ban (1) agreements among competitors to use a “common pricing algorithm;”¹³ and (2) the coercion of users to adopt recommendations generated by algorithmic pricing tools. The law—which went into effect on January 1, 2026— does not apply to a business's use of an algorithmic pricing tool that only utilizes the business's own data. New York also passed a law this year amending its state antitrust statute to regulate the use of algorithmic pricing in the residential real estate market. In addition, in 2025 dozens of bills were introduced in nearly half of U.S. state legislatures that would seek to regulate the use of algorithmic pricing tools. The number of municipalities that introduced and/or passed ordinances prohibiting the use of certain algorithmic pricing tools also grew in 2025, with such laws now on the books in Minneapolis, MN, San Diego, CA, Seattle, WA and Jersey City, NJ, among others.

On the consumer protection front, in November 2025 New York's Algorithmic Pricing Disclosure Act went into effect, which requires companies to disclose their use of algorithmic pricing tools to notify customers that their personal data is being used to set prices. A company's failure to meet these disclosure requirements may be met with a $1,000 penalty per violation.

On September 5, 2025, the FTC officially withdrew support for the FTC’s broad rule banning noncompete agreements that was finalized during the Biden administration. The FTC declined to appeal a district court ruling setting aside the rule, finding that the rule was overbroad and an inefficient use of agency resources. However, the FTC has stated its commitment to continued enforcement on a case-by-case basis of illegal noncompete agreements to “protect[] American workers from the effects” of such agreements. Commissioner Meador has provided a non-exhaustive list of factors the FTC may consider when evaluating the legality of a noncompete agreement, including whether the agreement:

• Could be replaced with a less restrictive alternative;
• Is broader than necessary in geographic scope, duration, and field of employment to protect legitimate interests; and
• Is imposed by a firm with market power.

In September 2025, in addition to issuing a request for information (RFI) on employee noncompete agreements to “inform the FTC’s enforcement priorities and future actions,” the agency also announced that it sent several “noncompete warning letters” to health care staffing companies and employers “urging them to conduct a comprehensive review of their employment agreements—including any noncompetes or other restrictive agreements—to ensure they are appropriately tailored and comply with the law.” In November, the FTC finalized a consent agreement with a pet cremation service to settle allegations that the company’s employee noncompete agreements were unlawful because they prohibited employees from working in the pet cremation service industry anywhere in the U.S. for one year without any individualized consideration of an employees’ role, and were used as a direct response to competitive threats. Pursuant to the consent order, the company is required to stop enforcing existing noncompete agreements and is prohibited from entering into similar agreements moving forward.

Noncompete agreements will continue to be an area of focus for the FTC under President Trump. The FTC is hosting a workshop on January 26, 2026 to highlight the negative impact of noncompete agreements on American workers and “put business on notice of its current enforcement priorities.”

In July 2025 DOJ announced that it is launching a Whistleblower Rewards Program that will offer monetary awards to individuals who report antitrust crimes. The new program, run in partnership with the United States Postal Inspection Service (USPIS) and the United States Postal Service Office of Inspector General (USPS OIG), offers qualifying whistleblowers up to thirty percent of any criminal fines recovered as a result of the reported information. As a result of the new whistleblower program, employees may be incentivized to bypass corporate reporting channels and bring information directly to the government to be eligible for a potential monetary reward under the new program. Unfortunately, without the benefit of receiving internal whistleblower reports from employees within the organization, corporations may not become privy to valuable information that could support a corporation's application for immunity under the DOJ Antitrust Division's Leniency Program.

DOJ notched a rare victory in its ongoing efforts to prosecute antitrust labor market cases when a federal jury in Nevada convicted the defendant for engaging in a wage-fixing conspiracy for home health care nurses. The conviction marked the first time a jury has found a defendant guilty in a criminal labor market case. In a press release announcing the conviction, AAG Slater said that wage-fixing agreements are illegal, and pledged that DOJ will continue to “zealously prosecute those who seek to unjustly profit off their employees.”

In December 2025, President Trump issued a full unconditional pardon for a CEO indicted by DOJ in July 2025 for engaging in a conspiracy to rig the bidding process for arenas at public universities. The defendant was scheduled for trial in early 2026. President Trump did not provide any rationale for the pardon. DOJ has also reportedly closed its grand jury investigation into the concrete additives industry.