Antitrust Litigation Is Likely to Match the Biden Era’s Pacing

In the second Trump administration, antitrust litigation of the past four years is likely to persist—if not through federal enforcement, then by increased litigation by state governments and the plaintiffs’ bar. Pending antitrust cases against major tech companies by federal and state governments are also expected to continue, but the federal government may swivel with regard to other industries.

Lawsuits alleging monopolization are likely to remain a strong focus. Enforcement still has support at the federal level among Vice President-elect JD Vance and other Republicans, and via Project 2025, a political initiative launched by the Heritage Foundation. State attorneys general, both Republican and Democrat, have shown interest in monopolization theories and are expected to continue to press these issues in new cases.

Ongoing antitrust lawsuits against Google, Meta, Apple, and Amazon will also proceed. We may see resolution in at least some of them, including the Google search case that’s in the remedy phase, the Google advertising trial that just completed, and Meta litigation set for trial in April.

The outcomes and remedies that result will likely reshape antitrust doctrine beyond the tech industry. Successful theories are expected to lead to an increase in antitrust litigation by governments, both state and federal, as well as private parties.

Several Sherman Act Section 1 trends in litigation are likely to also continue. Our digital world creates a large amount of information that’s shared and analyzed with speed and ease. As a result, the focus on information exchange—as either a component of a per se price fixing theory or as a stand-alone rule-of-reason theory—may increase.

Federal antitrust regulators’ withdrawal of decades-old guidance on information-sharing without any replacement guidance has largely left the job of determining the rules on information exchange to the courts. However, courts haven’t yet come to a consensus on the rules surrounding information exchange and are unlikely to do so soon. Litigation surrounding the sharing of competitively sensitive information will continue under the incoming administration, as well as from other sources.

Likewise, antitrust scrutiny will remain a significant presence in many industries, including food production and distribution, post-secondary education, and sports accreditation and competition—continuing a sharp uptick from recent years. There are no signs that the government entities and plaintiffs’ bar that have brought such cases will slow down. A Republican and a Democratic senator recently asked the US antitrust agencies to investigate the sports betting market for potential antitrust violations.

This new administration is also likely to see some new antitrust theories emerging under Section 1. Under Trump, the federal government is expected to conduct investigations and file cases on whether and how environmental, social, and governance and diversity, equity, and inclusion policies affect competition. State attorneys general may follow.

A prime example of the type of ESG-related antitrust litigation likely to occur this term is the recent lawsuit brought by 11 state attorneys general against Vanguard, Blackrock, and State Street that alleges the companies used their power as shareholders in coal companies to pressure management to reduce output because of climate concerns, thus violating Section 1, and state antitrust and consumer protection laws.

There is a sense in the business world that Trump will be more favorable to mergers, which is likely true. The federal antitrust agencies under the new administration will be more willing to resolve merger cases through divestitures or other remedies, more than they were during the Biden era. But that doesn’t mean merger litigation will disappear.

During Trump’s first term, the Department of Justice and Federal Trade Commission challenged several merger deals with novel theories of harm and challenged vertical mergers that may not have seemed as problematic in the past.

In addition, Vance praised FTC Chair Lina Khan’s merger control efforts. While merger enforcement may change, it’s unlikely to stop, especially if the mergers are in industries of interest to the new administration. Merger litigation may continue or even increase through the actions of state attorneys general. Although states have historically left merger challenges to the federal government, they have become much more active recently.

This has included actions both individually and in partnership with other states and federal enforcers. The trend of increased state merger litigation is likely to continue, especially if the new Trump administration is less aggressive at the federal level.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Jeetander T. Dulani is partner at Stinson and focuses on merger control, antitrust litigation including class actions, and civil and criminal government investigations.

J. Nicci Warr is partner at Stinson, where she focuses on antitrust and competition-related litigation and counseling.

Emily Asp is an associate at Stinson and has significant experience in all phases of litigation, including discovery and motions practice in state and federal court.

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