Mergers Get New State Scrutiny as Justice Department Steps Back

State attorneys general are preparing to challenge more M&A deals, stepping further into the role of antitrust watchdog that they say the Trump administration is abandoning.

Colorado and Washington state in recent months enacted laws requiring companies to notify state authorities about deals, and their attorneys general—and others in largely blue states—are strategizing about hauling dealmakers into court.

They say they are compelled to act because the Department of Justice appears less focused on protecting consumers than it is on following the transactional politics practiced by the White House.

“I think we have a real crisis in leadership,” Washington state Attorney General Nick Brown said in an interview with Bloomberg Law. “Our hope is that we will continue to partner with the feds where we can, but I do not view them, at least at the leadership level, as good-faith actors right now.”

The abrupt dismissals of senior DOJ antitrust leaders Roger Alford and Bill Rinner this summer similarly raised concerns about political interference in the approval of Hewlett Packard Enterprise Co.'s $14 billion takeover of Juniper Networks Inc.

“If you are not seeing red flags right now, you’re not paying attention,” Colorado Attorney General Phil Weiser said in a separate interview. “We’ve shown that we’re willing to go to court, we’re able to go to court, and we’re serious.”

Several major deals have been announced in recent weeks that could see antitrust scrutiny, including Paramount’s plans to acquire Warner Bros. Fifth Third Bancorp. has also agreed to buy Comerica Inc. for about $10.9 billion in stock, the largest US bank deal this year.

The DOJ didn’t respond to a request for comment. Attorney General Pam Bondi defended the department’s antitrust efforts at a hearing Tuesday before the Senate Judiciary Committee, noting the HPE-Juniper deal is still pending in court.

Deal Reviews

States have to be selective in challenging deals, as cases cost millions of dollars to bring and resources are tight.

This summer, Washington required certain companies with ties to the state to file a premerger notification to the attorney general’s office, allowing enforcers to be notified of acquisitions that could affect local consumers.

A Colorado law enacted this year operates in a similar fashion, requiring merging parties to submit filings if specific conditions are met, such as having a principal place of business or conducting significant sales in the state.

Challenges would likely focus on deals that directly affect taxpayers’ budgets—such as the cost of groceries and health care, as well as other products and services that reach consumers, said Danielle Morello, antitrust counsel at Clifford Chance.

“The state AGs are in a position, particularly as they band together, to be like a mini DOJ,” Morello said.

States, especially those bolstered with premerger notification laws, are most likely to bring cases against companies with a large in-state presence.

“When federal enforcers stand alone, there is a risk of a single point of political failure,” Alford, who had also served in the DOJ’s antitrust division in the first Trump administration, told Bloomberg Law. “State AG participation provides federal enforcers with a buffer against political influence.”

Brown pointed to a recent case against Seattle-based Zillow Group following a similar suit by the Federal Trade Commission.

Weiser didn’t comment on the prospects for specific actions but said law enforcement must be done in a responsible way: “When I see a threat to that, I’m going to speak up and take action.”

The two states brought separate suits challenging the Kroger-Albertsons supermarket deal. A federal judge blocked the deal last year in a case brought by the FTC, finding the takeover would lessen competition for US grocery shoppers. The supermarkets later dropped their plans.

‘Less Muscular’ Enforcement

“If the DOJ and FTC, as they have signaled, are going to be less muscular on merger and conduct enforcement, it basically is a message to companies and individuals that they are going to have to stand up for their own economic right, and one way you do that is to bring private cases or appeal to state enforcers,” said Doha Mekki, who was the DOJ’s principal deputy assistant attorney general in the antitrust dvision under President Joe Biden.

If proper enforcement isn’t happening due to pure political considerations, it will “motivate the state AGs to be involved to try to ensure the rule of law, when it comes to antitrust, is respected,” said Beau Buffier, partner with Wilson Sonsini Goodrich & Rosati and former antitrust bureau chief at the New York attorney general’s office.

Other states’ enforcers have foreshadowed their involvement in deal challenges.

“Attorneys general play a critical role in stopping mergers that threaten to raise prices and stifle competition,” New York State Attorney General Letitia James said by email. “I have led coalitions of states in challenging anticompetitive conduct, and I will continue to step up and enforce the law —regardless of whether this administration chooses to do so.”

Much of the state-level action will be from Democratic attorneys general, although some Republicans have joined the antitrust fray: Ohio Attorney General Dave Yost in 2023 sued Express Scripts and Prime Therapeutics for allegedly driving up drug prices. Yost’s office didn’t respond to a request for comment on this story.

DOJ Norms

Weiser and Brown, both Democrats, expressed broader concerns about the Trump administration’s handling of the DOJ.

Brown said it’s clear the current DOJ leadership has no qualms about firing or forcing people out who don’t achieve the political aims of the Trump administration.

The “norms of the Justice Department that I cherish are clearly under assault,” Weiser said.

The state of the department is also a threat to consumers, who are being hurt by a corrupted system of justice in which powerful actors with the right connections get special treatment, Weiser said.

“When we lose our commitment to responsible and fair law enforcement, none of us are safe.”