The dispute arose from Megatel’s effort to develop approximately 517 acres of land, known as the Cipriani Property, located outside the City of Mansfield’s limits but within its extraterritorial jurisdiction into a large residential, mixed‑use and commercial development. Access to retail water service was a prerequisite not only for occupancy but also for foundational development steps such as platting. The Texas Public Utility Commission had already granted a certificate of convenience and necessity (CCN) for the property to the Johnson County Special Utility District (JCSUD), which ordinarily would confer the exclusive right and obligation to serve the development. But a contractual arrangement between Mansfield and the JCSUD prohibited the JCSUD from providing water service within Mansfield’s extraterritorial jurisdiction without the city’s prior written consent, which Mansfield could withhold in its sole discretion. As negotiations dragged on for more than two years, Mansfield allegedly conditioned its consent on Megatel’s agreement to annexation, municipal control and taxation, and payment of development fees untethered to the provision of water service, even as the city ultimately refused to execute the proposed development agreement. As one city representative allegedly put it, “[i]f you control the tap you kinda control the world.” 170 F.4th at 956-57. After Mansfield’s refusal to authorize service, Megatel sued the city under sections 1 and 2 of the Sherman Act. A magistrate judge recommended dismissal on state action immunity grounds, reasoning that Texas had clearly displaced competition in retail water service. The district court adopted that recommendation and also dismissed on the alternative ground that Megatel failed to plead a viable antitrust violation. The Fifth Circuit reversed solely on the immunity question, holding that the lower courts failed to ask whether Texas had delegated monopoly authority to Mansfield itself, rather than to the JCSUD, and remanded for further proceedings.

The Fifth Circuit began by situating the case within the settled taxonomy of the state action doctrine. The state‑action doctrine holds that the federal antitrust laws do not apply to anticompetitive restraints imposed by a State acting as sovereign, or by its political subdivisions when they act pursuant to a clearly articulated and affirmatively expressed state policy to displace competition.

There are “three contexts in which state‑action immunity may be asserted”: (1) where a state “clearly exercises its sovereign powers”; (2) where a municipality or state agency acts pursuant to a “clearly articulated and affirmatively expressed” state policy to displace competition; and (3) where private actors or market participant‑controlled entities satisfy both clear articulation and active state supervision. 170 F.4th at 958.

Because Mansfield is a municipality, only the second category was at issue, and Mansfield therefore bore the burden to show that “its anticompetitive activities were authorized by the state.” Id. (citing Town of Hallie).

Critically, the Fifth Circuit treated FTC v. Phoebe Putney Health System, Inc. as controlling. In Phoebe Putney, the Supreme Court rejected immunity when the state of Georgia authorized hospital authorities to acquire hospitals but had not clearly delegated authority to make acquisitions that substantially lessened competition. The Court emphasized that Parker immunity requires a deliberate state decision to displace competition, not merely a foreseeable anticompetitive effect from a general grant of power. Echoing that principle, the Fifth Circuit stressed that the immunity inquiry begins with whether state law authorizes the defendant “to engage in the challenged conduct,” not whether the state generally tolerates monopoly in the field. 170 F.4th at 958-59 (citing Phoebe Putney).

The Fifth Circuit agreed that Texas law clearly displaces competition in retail water service. The Water Code declares that “retail public utilities are by definition monopolies in the areas they serve” and rejects market competition as inconsistent with the public interest. Id. at 959. But that concession resolved only the second step of the inquiry. Texas implements its monopoly policy through CCNs, which grant the holder the “exclusive right to provide water service in a designated geographic area.” Id. The CCN covering Megatel’s property belonged to the JCSUD, not Mansfield. As the court emphasized, Texas law “clearly articulates and affirmatively expresses” monopoly authority for the utility but “does not grant Mansfield the same power.” Id. at 960.

Because the state never delegated monopoly authority to Mansfield, the city failed at the threshold clear articulation step and was not entitled to state action immunity, even though it operated within a monopoly‑regulated market. The Fifth Circuit therefore reversed the dismissal and remanded, underscoring that Parker immunity is both “disfavored” and defendant‑specific. Megatel thus stands as a straightforward but important application of Phoebe Putney: A municipality cannot bootstrap immunity from a state‑created monopoly unless the statute affirmatively empowers that municipality, in that territory, to restrain trade.

State AGs Discuss Antitrust Approach

At the session, “A New State of Mind,” the panelists addressed a number of issues relating to state-level antitrust enforcement, providing a variety of perspectives.

State laws remain a patchwork, and each state has its own enforcement priorities, which can be daunting for private parties to navigate during a time when, as some panelists stated, the federal government has shifted its enforcement approach. Julian Quiñones, of the Connecticut Attorney General’s office, said that “[s]tates step in where the feds don’t.” However, while there may sometimes be different approaches between states and the federal government, there are still many places where the states continue to work collaboratively with the federal enforcers. Private party complainants would be well-served to keep these relationships in mind as they consider where to pitch enforcement actions.

Paula Blizzard of the California Attorney General’s office addressed numerous topics relating to California. She emphasized the importance of avoiding information-sharing at industry or trade association events – including pricing algorithms and aggregated data that can be de-anonymized. She also discussed recent California legislation that had the effect of increasing penalties, creating a single-firm monopolization cause of action, and broadly outlawing pricing algorithms. She was also candid about pending prominent lawsuits – California will not hesitate to bring cases independent of the federal government.

The panel also discussed antitrust actions in state courts. State courts can present an opportunity to educate state court judges on antitrust, particularly in states where antitrust litigation is rare, and can provide state AGs with a potential advantage as the representative of a state sovereign before a home court. 

Further, the panelists discussed the expanding state-level “mini-HSR” regime. Three states have enacted the Uniform Premerger Notification Act, and at least four more are likely to adopt the law before the end of the year. Ms. Blizzard argued in favor of these laws as a low-burden means of achieving information disclosure, without the need to respond to compulsory process. The state laws can also help state agencies to rule out potential merger investigations with ease, reducing the burden on transacting parties. 

Into the Breach: Private and State Merger Challenges

The panel discussed the rise of state attorney general and private challenges to problematic mergers. Elizabeth Maxeiner of the Illinois AG’s office observed that in her view, “Merger review, at least on the merits, is effectively dead at the federal level, particularly at the DOJ.” States are “concurrent” antitrust enforcers with the FTC and DOJ, and states may challenge deals as anticompetitive even if federal agencies do not. Historically, the federal agencies have worked closely with the states, but states are increasingly likely to go it alone, or as a group, typically when there are local interests that particular states seek to protect. Independent state action has worked in some cases, but has not had a tremendous track record of success to date. As always, resource constraints remain a concern for the states.

As it relates to private plaintiffs, they may sue for injunctive relief before a merger closes (i.e., in a similar procedural posture to government enforcers), or they may wait until after a problematic merger has closed to bring an affirmative claim for damages. By waiting to sue, private parties avoid the countervailing ripeness, standing and mootness considerations that often color private litigants’ premerger lawsuits. Look for more private litigation in this space in the coming years, particularly if transactions perceived as problematic are approved by government regulators.

The ABA Antitrust Spring Meeting opened its Wednesday session with a panel examining how recent actions by the federal government may signal its enforcement priorities in the coming year. Panelists from across the antitrust bar discussed recent enforcement activity at the DOJ and FTC, providing observations on merger enforcement, conduct cases, interagency dynamics, and the evolving relationship between federal and state enforcers.

Focus on ‘Kitchen Table’ Issues

Speakers noted both agencies’ interest in competition issues that affect consumers’ day‑to‑day lives, including the healthcare, agriculture, food, and consumer‑facing entertainment sectors. Commentators observed that federal enforcers’ focus on these industries reflects recent trends in antitrust policy, in which enforcement agencies look to demonstrate antitrust law’s relevance to issues with broad public impact.

Panelists noted that although this focus aligns with core principles of antitrust policy, agency actions over the past year have also addressed areas such as content moderation. They observed that while these issues are not traditionally viewed as “pocketbook” matters, they illustrate the broad range of issues the agencies may choose to examine under their statutory mandates.

Recent DOJ and FTC Activity

The panel revisited several speeches from DOJ and FTC leadership made within the past year, which many viewed as helpful in understanding potential enforcement priorities. These included remarks outlining the agencies’ methodological approaches, including those referencing the text, history and structure of the Sherman and Clayton Acts, as well as references to historical statements by Senator Sherman.

The panelists noted that, consistent with prior periods, the DOJ and FTC continue to signal active enforcement in both merger and conduct matters. They emphasized that the agencies are seeking continuity and stability in their approach, pointing to ongoing large technology cases – many of which have spanned multiple administrations – as examples of sustained priorities. The discussion also highlighted the decision to retain the 2023 Merger Guidelines. Panelists observed that undertaking a full revision would demand significant agency resources, and maintaining the current framework may reflect a practical effort to conserve those resources while still supporting robust merger review.

Several commentators expressed that targeted revisions, interpretive statements, or other forms of clarification would enhance predictability for merging parties, especially in portions of the guidelines that have generated uncertainty.

Merger Enforcement and Remedies

A recurring theme of the panel’s discussion was the administration’s approach to merger enforcement and remedy negotiations. Panelists observed that the agencies have shown greater willingness to engage in early settlement discussions, including detailed negotiations around structural divestitures. Many contested matters continue to center on traditional “head‑to‑head” overlaps, and structural remedies remain the primary mechanism for addressing identified competitive concerns.

The discussion also highlighted the importance of thoughtful resource allocation in guiding merger enforcement strategy. Panelists noted that antitrust agencies must continually balance the depth of their investigations with the practical limits of staffing and time. In some cases, pursuing a remedy that addresses a substantial portion of competitive concerns while requiring significantly fewer resources can be an effective way to maximize overall enforcement impact. This approach reflects a broader recognition that sound antitrust enforcement involves not only legal analysis, but also prudent management of agency resources to ensure consistent and efficient oversight across a wide range of matters.

State Enforcement Trends

Panelists highlighted the increasingly active and independent role of state attorneys general in antitrust enforcement, discussing how states may pursue parallel investigations, seek remedies different from those pursued by federal agencies, or use their enforcement authority to express alignment or divergence from federal policy choices. Speakers observed that states have expanded their antitrust capacity through increased hiring of experienced litigators, and that public interest in competition issues has contributed to a heightened focus on antitrust as a policy tool.

Recent merger transactions were discussed as areas in which state‑level review created additional strategic considerations for merging parties, including situations where federal agencies resolved matters without state participation. Commentators emphasized that, in some instances, state challenges may continue even after federal settlements are reached, leading to uncertainty about timing and potential litigation exposure.

Broader Policy Themes

The panel discussion also addressed broader policy areas that may shape enforcement in the coming years. Topics included:

• Deregulatory initiatives, including federal agency reviews of regulations that may impose competitive burdens on nascent industries.
• Renewed attention to intellectual property and innovation, with a focus on ensuring that the antitrust laws coexist with incentives for technological advancement.
• Competitor collaboration guidelines, including the prior withdrawal of guidance without replacement. Panelists described the absence of updated guidelines as a missed opportunity to provide clarity to businesses and deter only truly concerning conduct.
• Algorithmic pricing and product quality certification, two areas where panelists suggested that additional guidance could help establish predictable, pro‑compliance guardrails in rapidly evolving commercial environments.

Speakers noted that prior administrations addressed some of these issues through case‑specific statements of interest or litigation theories, but panelists suggested that more forward‑looking guidance – such as interpretive principles or updated collaboration guidelines – could provide clearer guardrails. Several participants expressed the view that guidance should articulate the types of data practices, governance structures, and compliance protocols that agencies view as consistent with pro-competitive, efficiency‑enhancing uses of pricing technology.

Finally, panelists noted that algorithmic pricing naturally intersects with broader agency interests in transparency, market structure, and predictability.

Looking Ahead

The panel concluded by noting that upcoming personnel changes at both agencies may play a significant role in shaping enforcement approaches moving forward. Attendees identified questions about agency structure, resource allocation, and the evolving division of responsibilities between the DOJ and FTC as key issues to watch in the coming year.

In Calhoun v. California Interscholastic Federation et al., the U.S. District Court for the Northern District of California upheld CIF’s traditional amateurism and transfer rules under the state‑action immunity doctrine but refused to extend that protection to CIF’s prohibition on student‑athletes licensing their name, image and likeness (NIL) while referencing their school identities.[1] The ruling keeps CIF’s compensation caps and transfer restrictions intact for now but subjects its NIL ban to full scrutiny under the antitrust laws – a development that could reshape how high school athletes monetize their personal brands.

The lawsuit, brought by former high school athlete Dominik Calhoun on behalf of a putative class of California student-athletes, alleged that CIF’s compensation limits, transfer restrictions and NIL rules unlawfully suppress opportunities for student‑athletes to earn compensation – for example, being paid to appear in an advertisement while wearing their team uniform – and move freely between schools. Calhoun’s NIL‑related allegations mirror the recent wave of challenges that dismantled core NCAA compensation restrictions. With those NIL precedents looming large, the suit signals that CIF’s rules may be vulnerable to the same market‑based scrutiny now transforming other levels of amateur sports.

In California, school districts oversee interscholastic athletics, but CIF – a voluntary association that governs roughly 1,600 public and private high schools – wields the rulemaking and enforcement authority that shapes how those competitions are run. Although CIF is a private, dues‑funded entity that operates independently of the state, California law recognizes its regulatory role and subjects it to open‑meeting rules, public records access and periodic legislative reporting. CIF’s rules must also conform to statutory directives governing recruitment, undue influence, discrimination and athlete eligibility. Yet despite this statutory recognition, the court rejected CIF’s threshold argument that it is an arm of the state entitled to sovereign immunity.

The court’s finding that CIF was not an instrumentality of the state government set the stage for a rule‑by‑rule analysis under the Supreme Court’s Midcal state‑action framework.[2] As a private actor seeking Midcal immunity, CIF had to establish that each restraint was grounded in a clearly articulated state policy to displace competition and was actively supervised by the state. That standard is met only when the Legislature intended to substitute regulation for market forces and the restraint is the logical and foreseeable result of that choice.[3]

Rejecting any notion that CIF’s regulatory scheme operates as a single package, the court evaluated each rule independently. CIF’s amateurism‑driven compensation caps – $250 for regular‑season awards and $500 for postseason awards – survived Midcal, as did its transfer restrictions. In the court’s view, California’s robust statutory framework governing recruitment, undue influence and eligibility made these restraints not only consistent with state policy but also a foreseeable extension of it.

But CIF’s ban on student‑athletes licensing their NIL while referencing school‑affiliated identities did not hold up under Midcal. Unlike the statutory scaffolding that supports CIF’s amateurism and transfer rules, California law does not regulate – let alone prohibit – high school NIL commercialization. With no clear legislative footing – and no basis to view the ban as a foreseeable extension of California’s regulatory framework – the court held that state‑action immunity did not apply. That means the NIL rule can now be subject to full antitrust review, where its chances of survival may turn on whether CIF can show sufficient procompetitive justifications under the rule‑of‑reason framework.

Ultimately, the court dismissed all claims against the media defendants and the antitrust challenges to CIF’s amateurism and transfer rules but allowed Calhoun to amend his complaint and replead his lone surviving theory: lost NIL compensation. The court also emphasized the need for evidence addressing whether NIL for California high school athletes is reasonably interchangeable with NIL of athletes in other states or whether elite prospects’ NIL commands distinct market value – themes that have driven market‑definition analyses in similar collegiate litigation.

Calhoun is a reminder that state‑action immunity is a scalpel, not a shield. As NIL opportunities begin to reach high school athletes, the Calhoun decision points to a broader judicial interest in examining how private associations justify compensation‑related restrictions. The ruling suggests that courts will look more carefully at whether organizations acting as de facto regulators can identify clear statutory support for the restrictions they impose, particularly when those rules shape the contours of emerging markets.

[1] Calhoun v. Cal. Interscholastic Fed. et al., No. 25-cv-04603, 2026 WL 74278 (N.D. Cal. Jan. 9, 2025).

[2] Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980); see also N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 503–04 (2015). 

[3] S. Motor Carriers Rate Conf., Inc. v. United States, 471 U.S. 48, 64 (1985); City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 370–71 (1991).

Competitor collaborations and joint ventures have long been scrutinized under the antitrust laws for their potential impact on competition and in some instances, alleged violations of antitrust laws. The 2000 Collaboration Guidelines provided companies a framework under which to analyze certain relationships with competitors.

As we previously reported, the 2000 Collaboration Guidelines were withdrawn, in part, because of the belief that the increase in the use of novel technologies in connection with competitor collaborations left the over 20-year-old guidelines unable to adequately assess the potential legality of competitor relationships. At the time of the withdrawal, the DOJ and FTC said that “while some specific aspects of the Collaboration Guidelines may accurately reflect that state of the law, the Collaboration Guidelines no longer provide reliable guidance to the public about how enforcers assess the legality of collaborations involving competitors.” Specifically, the 2000 Collaboration Guidelines did not assess the impact on competitor collaborations of artificial intelligence, algorithmic pricing models and data sharing. If new guidelines are adopted, they would be expected to address these issues, among others.

Acting Assistant Attorney General Omeed A. Assefi of the DOJ Antitrust Division, emphasized that “[p]rocompetitive collaborations are not only permissible but also encouraged in a complex and dynamic economic environment.” Assefi also said that “[r]eplacing the withdrawn guidelines is key to promoting certainty, allowing American businesses to work together effectively and lawfully, and enabling the private antitrust bar to enhance compliance in this area.”

Current FTC Chairman Andrew Ferguson, who had spoken out against the former administration’s withdrawal of the 2000 Collaboration Guidelines, stated that “[i]n an ever-changing economy, businesses need transparency and predictability from enforcers more than ever,” and “[t]hese times may require the federal government to update its guidelines.”

Enforcers are accepting comments for 60 days and are asking for input on what should be addressed in any new guidelines.

The letter, joined by four Senate colleagues, was remarkable for the breadth of stakeholders it cited as vulnerable to discriminatory prices, from small and mid-size businesses to “ordinary American” consumers to “farmers and ranchers.” It also represents a continuation of a bipartisan antitrust priority – convenient access to groceries, pharmacies and other basic consumer staples in urban and rural areas. Former Commissioner Alvaro Bedoya, appointed by President Biden, frequently spoke about this issue during his tenure. Senator Grassley and his colleagues warned in their letter that unlawful price discrimination threatens both local economies and the stability of supply chains.

Meanwhile, in December 2025, Senator Cory Booker and Representative Maxine Waters introduced companion versions of the Fair Competition for Small Business Act of 2025. The bills propose a wording change to the antitrust laws that would expand the power of state attorneys general to seek monetary damages for price discrimination under the Robinson-Patman Act.

The Robinson-Patman Act continues to have support at the FTC as well, even though the Commission has brought fewer cases this year. Although FTC Chairman Andrew Ferguson voted against filing a complaint, the FTC continues to pursue its current Robinson-Patman case against Southern Glazer’s Wine and Spirits, LLC for allegedly offering discriminatory discounts and rebates to retailers. And in his dissent to that case, Chairman Ferguson wrote that the FTC was duty-bound to enforce the Robinson-Patman Act, regardless of whether it was good or bad policy. FTC Commissioner Mark Meador likewise penned an article for the Federalist Society in 2024 in which he stated, “It is entirely appropriate to question whether the [Robinson-Patman Act] is good policy, but it remains the binding policy of the federal government. The only way to change that is for Congress to pass new legislation. Until that happens, it remains the duty of federal law enforcers to enforce the law as written.”

This demonstrates a potential shift in policy. Prior to the Southern Glazer’s case, filed in 2024, the FTC had issued only one Robinson-Patman Act complaint since 1992. As recently as 2007, the Antitrust Modernization Committee, created by an act of Congress, recommended the Robinson-Patman Act be repealed, concluding it “is fundamentally inconsistent with the antitrust laws and harms consumer welfare” and is irreconcilable, it found, with the purpose of the antitrust laws.

The upshot is that the Robinson-Patman Act is probably here to stay, at least for now. After decades of the Act’s dormancy, companies should be cautious about complacency. Besides the ever-present possibility of costly private litigation under the Act, companies that ignore price discrimination laws do so at their own peril and may risk finding themselves the subject of a federal investigation. Stay tuned. 

Former New Jersey Attorney General Matthew J. Platkin’s participation was particularly timely; he recently concluded his tenure as New Jersey’s Attorney General (AG), during which he spearheaded the creation of a dedicated Antitrust Litigation and Competition Enforcement Section – an institutional shift reflecting the state’s expanded commitment to competition enforcement. His remarks at the conference were notably candid, unfiltered by the constraints of elected office, and offered an inside view of how states regard their growing role in antitrust enforcement.

Platkin emphasized that state enforcement will continue to be an indispensable component of the national antitrust framework, with state attorneys general often operating in bipartisan alignment on matters that resonate strongly with constituents. He noted that although antitrust cases can be legally complex, the issues at their core – affordability, market fairness and consumer choice – are deeply relatable to the public.

Despite New Jersey having one of the country’s largest Attorney General offices, Platkin highlighted that the state historically lacked a dedicated antitrust division – not for lack of statutory authority, but because civil enforcement priorities lay elsewhere. His administration reversed that posture by establishing a permanent antitrust enforcement unit, reflecting the increasing complexity and local economic impact of modern competition issues. He observed that past assumptions – that antitrust was “too complicated” for states and best left to federal agencies – no longer reflect current market realities. States now view themselves as essential partners in scrutinizing market conduct, including high-technology sectors, digital platforms, data-driven business models, and markets affecting public welfare such as healthcare and housing.

Throughout his remarks, Platkin returned to a central theme – the intersection of technology and affordability will define enforcement priorities for years to come. This includes:

• Digital Platforms and Emerging Technologies. Platkin cited rising concerns around dominant digital intermediaries, online ecosystems, and markets in which data plays an outsized role. He also discussed algorithmic pricing – particularly in housing and other consumer markets – as an area ripe for scrutiny.

• Child and Youth Protection. State AGs are increasingly focused on how digital services affect minors, including risks posed by data collection, addictive design, or targeted content. These issues, though often framed as consumer protection matters, can intersect with market power concerns where platform dominance magnifies harm.
• Healthcare and Prescription Drug Markets. Platkin identified healthcare as a continuing point of emphasis, particularly for hospital consolidation and pharmaceutical pricing.
• Student Debt and Affordability Markets. He noted that consumer-facing markets tied to affordability – including education financing – remain areas of interest as states evaluate potential anticompetitive practices that burden households.

Platkin stated that state AGs intend to remain vigorous enforcement partners with federal agencies, but should federal priorities shift, states are prepared to step in, not retreat. He analogized this dynamic to environmental protection, where state enforcement has historically intensified to fill perceived federal gaps.

Yet Platkin acknowledged the practical reality that states cannot match federal enforcement resources, especially in nationwide technology cases requiring extensive economic, technical and discovery capabilities. For that reason, multistate coalitions remain the preferred model. Certain states, he observed, will continue to serve as “first movers” or de facto co-regulators in specific industries. As one example, he referenced how some large states’ environmental or regulatory agencies shape national standards through their market influence. He further noted that due to resource constraints, states will continue relying on outside counsel under contingency fee arrangements, a tool that has helped smaller jurisdictions pursue significant antitrust actions that would otherwise be out of reach.

Historically, many states have prioritized post-conduct litigation over pre-merger review, but Platkin expects that to shift. With enhanced internal capabilities and a renewed focus on consumer affordability, state-level merger review is likely to expand, particularly in sectors such as healthcare, pharmaceuticals and technology.

This trend aligns with predictions from national antitrust practitioners; states increasingly view merger enforcement not as an adjunct to federal review, but as an independent mandate to protect their own markets.

Federal District Court Judge Richard Boulware (D.Nev.), also a conference speaker, asked Platkin whether expanded state enforcement might lead to divergent antitrust jurisprudence between federal and state courts. Platkin responded that divergence is not only possible but also likely, due largely to the U.S. Congress’s failure to keep pace with technological change. State AGs and state courts have long traditions of active consumer protection enforcement, and states remain resolutely opposed to federal attempts to preempt state competition laws. He observed that divergence is particularly probable where cases are not consolidated into a single federal multidistrict litigation (MDL), allowing multiple state courts to develop distinct legal interpretations tailored to local statutes and standards.

Platkin summarized the future of antitrust enforcement in one unifying principle – the most urgent and bipartisan competition policy issues are those where technology intersects with affordability. From digital markets and healthcare to housing and education, state AGs see antitrust as a crucial tool to protect consumers in rapidly evolving markets. The 2026 ABA Diverse Perspectives conference underscored that antitrust law is entering a period of profound evolution – driven not only by federal policy shifts but also by increasingly assertive and strategically empowered state enforcers. Platkin’s remarks reflected both the challenges and opportunities ahead for a system in which states are no longer secondary players but full partners in shaping the future of competition policy.

• On August 29, Judge Lasnick of the U.S. District Court for the Western District of Washington dismissed the complaint in Portillo, et. al v. Costar Group, Inc., et. al (No. 24-cv-229-RSL).
• The court held that the allegations were insufficient to plausibly state a claim to relief because the information shared was not alleged to be sufficiently current or useable to support a claim for price-fixing. And the court observed that with no allegations of horizontal information sharing, a “hub-and-spoke” conspiracy was not adequately pled.
• The court granted the plaintiffs 30 days’ leave to file an amended complaint.

On August 29, the U.S. District Court for the Western District of Washington dismissed a putative class action complaint against Costar and several hotel defendants.[1] The complaint alleged that the hotel defendants use the same benchmarking software licensed from Costar. As alleged, under license agreements, the hotel defendants provide Costar with historical data, which it anonymizes and aggregates, and then provides benchmarking reports to the hotel defendants. The complaint alleged, via a confidential witness, that the benchmarking reports can be de-anonymized – but did not identify or allege any instances of this having actually happened in practice. And finally, the complaint did not allege any horizontal information sharing along the “rim” of the alleged hub-and-spoke conspiracy.

The court held that the Costar terms and conditions do not require subscribers to provide granular pricing information, and that there is no requirement that the data the hotel defendants supply must be current or the most recent available. So even if a particular hotel defendant could de-anonymize a Costar benchmarking report, there is no guarantee that it would receive current and/or useable data through its decoding effort. The complaint did not allege that price information from specific defendants was inputted then returned to specific others in an identifiable manner. And the court noted that there were no allegations of information sharing on the rim – i.e., horizontally from hotel defendant to hotel defendant. Thus, the complaint failed to plausibly allege both a traditional price-fixing conspiracy and a hub-and-spoke conspiracy.

However, the court granted the plaintiffs 30 days’ leave to amend, recognizing that antitrust conspiracies are complex and the plaintiffs may be able to re-plead more effectively in light of the court’s opinion. It suggested that some of the defects in the complaint may be cured by moving away from nebulous terms such as “pricing information” in favor of more concrete and clearly defined terms. The court also admonished the plaintiffs to account for the Ninth Circuit’s recent opinion in Gibson v. Cendyn Group, LLC, which affirmed the dismissal of a similar case alleging price-fixing via price recommendation software commonly used by several hotels on the Las Vegas Strip.[2] A third similar case alleging hotel price-setting via algorithm – concerning hotels in Atlantic City, New Jersey – was dismissed last year, and the appeal in that matter remains pending.[3] Plaintiffs’ counsel are facing the real likelihood of going “0 for 3” in these cases concerning the alleged algorithmic price-fixing of hotel rooms.

[1] Portillo v. Costar Grp., Inc., No. 24-cv-229-RSL, 2025 WL 2495053 (W.D. Wash. Aug. 29, 2025).

[2] Gibson v. Cendyn Grp., LLC, — F.4th —-, No. 24-3576, 2025 WL 2371948 (9th Cir. Aug. 15, 2025).

[3] Cornish-Adebiyi v. Caesars Ent., Inc., No. 1:23-CV-02536-KMW-EAP, 2024 WL 4356188 (D.N.J. Sept. 30, 2024); Cornish-Adebiyi v. Caesars Ent., Inc., No. 24-3006 (3d Cir.).

• Washington and Colorado are set to become the first states to substantially adopt the Uniform Antitrust Pre-Merger Notification Act. 
• Beginning July 27, certain companies and individuals will be required to submit electronic copies of their Hart-Scott-Rodino Act filings with the Washington state attorney general.
• Barring a constitutional referendum, a similar requirement will go into effect in Colorado on Aug. 6.
• This is likely only the beginning of a growing trend of premerger regulation at the state level.

Earlier this year, Washington state enacted a version of the nascent Uniform Antitrust Pre-Merger Notification Act (the Uniform Act), which is slated to take effect on July 27.[1] The Uniform Act will require companies or individuals who file a federal Hart-Scott-Rodino (HSR) Act premerger notification to contemporaneously file an electronic copy with the Washington attorney general’s office if the company or individual: (1) has its principal place of business in Washington; (2) has (or controls an entity that has) annual net sales of goods or services involved in the transaction of at least 20 percent of the HSR filing threshold (i.e., $25.28 million, 20 percent of the current minimum HSR threshold of $126.4 million); or (3) is a healthcare provider or provider organization.[2] Closing a transaction subject to the Uniform Act without submitting the required notification could result in civil penalties of up to $10,000 per day of noncompliance.

Colorado will likely join Washington and become the second state to implement a version of the Uniform Act. As early as Aug. 6,[3] those who submit an HSR filing must contemporaneously file an electronic copy with the Colorado attorney general’s office if they: (1) have their principal place of business in Colorado; or (2) have (or control an entity that has) annual net sales of goods or services in excess of at least 20 percent of the HSR filing threshold.[4] As with Washington’s version of the Uniform Act, failure to comply could result in civil penalties of up to $10,000 per day of noncompliance.

More states are likely to follow the lead of Washington and Colorado. Currently, versions of the Uniform Act have been introduced in California, Hawaii, Nevada, Utah, West Virginia, and the District of Columbia.[5] New York Senate Bill 335, which passed in the state Senate in June 2025 and remains pending in the Assembly, would apply to a broader set of transactions than does the Uniform Act.[6] If enacted, this bill would subject any person “conducting business in the state” who is also subject to a federal HSR filing to a premerger notification requirement with the New York attorney general.[7] In addition to these laws of general applicability, 34 states plus the District of Columbia already have premerger notification requirements for certain transactions involving healthcare entities.[8] The filing requirements are a patchwork, and the waiting period the parties must observe varies from state to state. Finally, California also requires premerger filings for certain transactions involving retail grocery stores and retail drug stores (i.e., pharmacies) with a physical presence in California.[9]

Transacting parties need to keep apprised of rapidly developing state antitrust legislation in order to ensure compliance. These state laws may delay closing if all relevant filings are not made timely, or worse, subject the transacting parties to substantial fines for noncompliance. Antitrust counsel should be involved early in diligence to ensure that all required filings are identified and made correctly and timely.

The authors would like to give special thanks to Summer Associate Stef Pousoulides for her contributions to this blog.

[1] S.B. 5122, 69 Leg., 2025 Sess. (Wash. 2025), available at https://lawfilesext.leg.wa.gov/biennium/2025-26/Pdf/Bills/Senate%20Passed%20Legislature/5122.PL.pdf?q=20250408084052.

[2] Washington’s new premerger notification requirement adopts the definition of a healthcare provider or organization from Wash. Rev. Code § 19.390.020. This requirement is unique to Washington’s version of the Uniform Act.

[3] Colorado’s law will go into effect on Aug. 6 if no state constitutional referendum in opposition to the bill is initiated. If such a referendum is initiated, the effective date would be delayed until after the general election in November 2026, when Coloradans would vote on the referendum.

[4] S.B. 25-126, 75th Gen. Assemb., 1st Reg. Sess. (Colo. 2025), available at https://leg.colorado.gov/sites/default/files/2025a_126_signed.pdf.

[5] See S.B. 25, 2025-26 Leg., Reg. Sess. (Cal. 2025); S.B. 348, 33d Leg., Reg. Sess. (Haw. 2025); S.B. 218, 83d Leg., Reg. Sess. (Nev. 2025); H.B. 466, 2025 Leg., Gen. Sess. (Utah 2025); H.B. 2110, 2025 Leg., Reg. Sess. (W. Va. 2025); S.B. 32, 2025 Leg., Reg. Sess. (W. Va. 2025); B. 26-0030, 26th Council (D.C. 2025); see also Kaitlin Wolff, Antitrust Pre-Merger Notification Act: Bill List, Unif. Antitrust L. Comm’n, https://www.uniformlaws.org/committees/community-home?CommunityKey=6bf5d101-d698-4c72-b7c1-0191302a6a95.

[6] S.B. 335, 2025 Gen. Assemb., Reg. Sess. (N.Y. 2025).

[7] There are a number of limited exemptions. See id. § 340(11)(b).

[8] Sarah Jaromin, The Evolving Landscape of State Health Care Transaction Laws, The Nat’l Conf. of State Legislatures (Aug. 19, 2024), https://www.ncsl.org/health/the-evolving-landscape-of-state-health-care-transaction-laws.

[9] See Cal. Corp. Code § 14700.

Not Your Parents’ HSR Regime

This panel discussion concerned all facets of the premerger notification regime, including state premerger laws. The highlight of the panel was its thorough analysis of the new HSR form, unveiled earlier this year.

The changes to the form are extensive. We have previously written about these changes here: https://www.bakerlaw.com/insights/ftc-unveils-sweeping-modifications-to-hsr-merger-notification-form/.

The new form requires substantial additional information and documents. The FTC estimates the rules will cause an average of approximately 70 additional hours of attorney time per filing. The panelists reported that this has been an underestimate to date. They have noticed transacting parties building in additional lead time and purchase agreements including longer duration post-signing deadlines to file. Ambiguities and subjectivity in numerous areas of the final rule are also causing heartburn for transacting parties.

The Future of Healthcare Mergers

Healthcare remains an industry of heightened importance in antitrust. Following the withdrawal of the healthcare-specific merger guidelines, the only active guidance from the government that remains is the 2023 Merger Guidelines. The enforcers on this panel were enthusiastic about the 2023 merger guidelines and the withdrawal of healthcare-specific guidelines. They viewed the prior industry-specific guidelines as outdated and insufficient to identify anticompetitive transactions. Now the 2023 guidelines provide a common set of rules for both transacting parties and the enforcers.

The enforcers on the panel also stressed that local factors, including geography and other market idiosyncrasies, can matter in healthcare mergers. And at the state level, competition concerns can be addressed in conjunction with other state regulatory reviews required in advance of closing.

Looking ahead, while the enforcers certainly care about price effects, quality of care is also a paramount issue in healthcare transactions. Proving that the transaction increases quality of care is, and likely will remain, very difficult for transacting parties. Cross-market mergers – where dominance in one market can be leveraged in another – are also likely to be an enforcement priority in the future.

Back to the Future? Antitrust Under the New Administration

At a panel discussing antitrust enforcement under the new administration, panelists speculated that the FTC and the DOJ could be more interested in settlements when challenging mergers. Although the panelists noted that the future remains unclear, they speculated that the new administration may seek more divestitures and other settlements, as compared to the last administration which more frequently sought to block mergers. The panelists also noted that the reduction in staff at the FTC and DOJ could impair the agency’s ability to pursue cases, which might make settlements a more attractive option for the agencies. However, the Attorney General for the State of Colorado, the only state enforcer on the panel, stressed that states would continue to pursue robust antitrust enforcement.

Revenge of the Refusal to Deal?

Antitrust practitioners, professors and regulatory experts gathered for this panel to discuss the refusal to deal and its viability as a ground for antitrust liability. The refusal to deal – the decision of one competitor not to deal with another in conducting its business – has long been recognized as a right of competitors to deal with the parties of their choosing. As the panelists opined, the refusal to deal makes plain that spite is not an antitrust violation.

The panelists recounted the extensive legislative history of the nation’s antitrust laws, particularly the Sherman Act, which contains negative proscriptions but notably does not compel competitors to take action that would benefit their counterparts. But while the refusal to deal is a seemingly well-protected right of competitors, there are some cases where a refusal to deal might open the door to liability, such as in the U.S. Supreme Court’s decision in Aspen Skiing. Such cases, however, have been described by the Supreme Court as demarking the “outer bounds of Sherman Act liability.”

Pursuant to a strong history of case law recognizing the refusal to deal, defendants often vigorously seek to characterize allegedly monopolistic conduct as a simple refusal to deal in their cases, while plaintiffs argue that the conduct at issue is something more. For example, the issue has arisen in some of the “Big Tech” cases, where plaintiffs have argued that defendant companies’ actions amount to “conditional dealing.” But despite these fights over “semantics,” as one panelist phrased it, courts have reaffirmed the core principles regarding refusal to deal by refusing themselves to depart from well-settled precedent.

The future of the law surrounding refusals to deal could change. New York is currently considering a bill that would forbid the “abuse of dominance,” aimed at companies that wrongfully use their market position to their advantage to the detriment of competitors. Under the bill, a refusal to deal is expressly included as an abuse of dominance. California is considering similar legislation, as the California Law Commission recently suggested that the legislature pass laws prohibiting abuse of dominance. As state legislation continues to develop, it is worth keeping an eye on refusals to deal and their potential to give rise to antitrust scrutiny.