Insights from the ABA 2025 Antitrust Fall Forum
From algorithmic pricing to adtech to AI-generated media, antitrust law practitioners can’t help but live on the cutting edge of many of the high-tech issues facing businesses and society today. The recent ABA 2025 Antitrust Fall Forum put the spotlight on state agencies, and speakers and attendees discussed how, in many cases, state attorneys general (AGs) and their teams are pushing the line when it comes to these emerging questions.
Why States Are at the Vanguard
State governments have a long antitrust law history, going as far back as cases challenging railroad and oil monopolies in the 1800s. They generally have broad enforcement capabilities, whether under their own state laws or the Sherman Antitrust Act. In addition, many states have civil authority, as well as criminal authority, providing another tool for antitrust actions that can be quicker and easier to implement.
The differing constituencies of states means that state AGs are sometimes better fitted to pushing antitrust causes further, compared to a federal government that approaches issues from a broad, national perspective. State AGs focus on curbing detrimental conduct that harms their citizens, and, whether intentional or not, this often means they’re pushing the law or testing novel causes of action.
One speaker at the ABA Forum even called out how surprising it is that there is a dearth of federal laws and modern case law that are equipped to handle current antitrust cases involving technologies like AI. The case law that does speak to these issues is often dated and involves business and markets that were much different at the time of the rulings than they are now. U.S. v. Microsoft, decided over two decades ago in 2001, is still a key point of reference and it was decided in a different era for the legal industry. For example, at the time, eDiscovery didn’t even exist. Today, a single discovery demand can involve petabytes (thousands of terabytes) of data.
While discussing this dynamic between state and federal approaches to antitrust at the ABA Forum, a recent examples cited was the state of Texas’ $1.375 billion settlement with Google over data privacy rights infringement based on Google’s ad technology collecting citizens’ geolocation, incognito searches, and biometric data. Speakers also noted the 30+ state AGs submitted amicus briefs supporting Epic Games in their lawsuit against Google over fees in its Google Play store. And, while it originates with a federal action, the dynamic is also in play as states push back on the HPE-Juniper Networks merger after the U.S. Department of Justice (DOJ) proposed a $14 billion settlement in the case. Some states found this move controversial and a recent decision by a U.S. District Judge in California ruled that states can intervene and challenge this proposal.
State and Federal Antitrust Collaboration Remains Strong
Even though state AGs may be pushing the line on some issues, the speakers at the ABA Forum emphasized that, especially when it comes to Big Tech, there are regardless strong, bipartisan relationships between state and federal agencies. A couple of recent examples of this collaboration included:
- Zillow and Redfin: In this case alleging anticompetitive practices between the two online real estate listing companies as a result of an agreement they entered earlier this year, five states and the FTC filed nearly identical separate complaints.
- RealPage: In another real estate industry lawsuit, this one involving alleged antitrust violations that result from algorithmic pricing software, the U.S. DOJ and several state AGs brought actions, alongside private actions in Washington, D.C., and Arizona.
- LiveNation and Ticketmaster: 40 states joined the U.S. DOJ in an action against the live event ticketing company, alleging that they have monopoly power over the industry and are using that to charge excessive ticket prices and fees. LiveNation’s attorneys recently filed a motion to dismiss the suit.
In a world where laws aren’t always in place to address antitrust issues from a federal perspective, one speaker explained that the state attorney generals are the “third leg” of the antitrust enforcement stool. On issues that involve big business, and especially Big Tech, there is often alignment across the aisle, and these are the issues where the states and the federal government can collaborate to have the biggest impact.
Addressing the Patchwork of State Merger Notification Requirements
One area of law regarding big business that states are currently making waves with is merger notifications. Currently, more than 30 state governments require notifications when organizations merge, with a variety of triggers. This has created a patchwork of state laws that complicate mergers and sometimes delay transactions. The biggest potential delays come from the negotiation of confidentiality agreements between states and companies.
The federal government attempted to remedy this bottleneck by including a confidentiality waiver checkbox on forms associated with the Hart-Scott-Rodino Antitrust Improvements Act (HSR). However, panelists at the forum explained that, in practice, these checkboxes are rarely used. Although their use could prevent delays, companies are reticent to waive confidentiality because of privacy and security concerns. Merger documents contain extremely sensitive information and companies want to be sure that states receiving these documents have protections in place to stop that information from being inadvertently disclosed.
Because of the different ways states across the country treat merger notifications, the Uniform Law Commission drafted the Uniform Antitrust Pre-Merger Notification Act, which attempts to standardize this process. Earlier this year, Washington and Colorado became the first states to pass laws based on this uniform act, both of which require parties filing HSR forms “to submit a copy to the state attorney general, regardless of the industry at issue, if the filing party has a certain connection to the state.”
Whether more states will follow suit and adopt laws that follow the uniform act was a subject of lively discussion at the forum. The wide range of resources that different states have available to them makes across-the-board adoption difficult. But attorneys who represent the private sector point to the similarly resource-intensive nature of the current patchwork of legislation—imagine filing 50 different documents with 50 different state agencies all in one day. Regardless of the outcome, it was clear that with only two states having passed legislation based on the uniform act so far, it will take time before the current patchwork of state legislation is sewed up.
Taken together, these insights from the ABA Forum’s discussions show an antitrust environment that is evolving faster than the laws meant to govern it. State AGs are stepping into that gap with a willingness to push the line forward, protect their constituents, and collaborate with other states and the federal government when their interests align. For the next few years, practitioners and the companies they represent will have to be ready for an antitrust environment that mirrors the unpredictability of the issues presented by rapidly evolving technology.
