With the American Bar Association's 2025 Antitrust Spring Meeting wrapped up, we look back at key takeaways from more than 70 panels, roundtables and fireside chats over three packed days in Washington, D.C., from April 2 to 4.
Leadership changes, shifting priorities and evolving enforcement tools dominated the conversation, as panelists explored antitrust policy under a second Trump administration, agency discretion under the 2023 merger guidelines, and new frontiers in conduct enforcement, among others.
Recent events were top of mind, including President Donald
Trump's removal of Federal Trade Commission Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter and the proposals to shutter select field offices of the U.S. Department of Justice's Antitrust Division.
Former agency leadership recounted resource constraints and the enforcement trade-offs they necessitate. Amid these challenges, we expect the FTC and DOJ to prioritize sectors of interest to the Trump administration: agriculture, labor, pharmaceuticals, pharmacy benefit managers and technology.
U.S. Merger Enforcement Updates and Priorities
Merger enforcement in the U.S. was top of mind throughout the spring meeting with particular emphasis on the following points:
- The new Hart-Scott-Rodino Act form appears here to stay, and it has the ability to influence the volume and scope of second requests and increase visibility of nonreportable transactions.
- The 2023 merger guidelines similarly appear likely to remain in effect, but they afford a degree of prosecutorial discretion which both agencies will exercise in light of resource constraints.
- FTC and DOJ leadership are open to approving nonproblematic transactions and to consider robust remedies, but will not shy away from merger challenges where warranted.
The New HSR Form Is Here to Stay
Although some panelists expressed surprise that the Trump administration did not seek to get rid of the new HSR form when it was issued, FTC Chairman Andrew Ferguson, who was an FTC commissioner at the time, touted it as necessary and appropriate.
As chairman, Ferguson has doubled down on the anticipated benefits of the new HSR form, stating on social media in February that not only will it allow the agencies to quickly identify anticompetitive mergers, but that it will also allow the agencies to "more quickly get out of the way of deals that will benefit the American people."
While some speculated that the new HSR form might lead to fewer and more narrowly tailored second requests or more frequent early terminations, the consensus at the spring meeting was that the new form will increase the time and costs associated with a filing.
William Baer, former assistant attorney general of DOJ Antitrust Division and also former director for the Bureau of Competition at the FTC, postulated that the increased information required under the new HSR form has the potential both to allow the agencies to be more efficient and dismiss their concerns during the initial waiting period, and to engender additional questions that result in more second requests.
In particular, we expect the requirement to provide information on nonreportable transactions could draw increased scrutiny, given that both agencies have always retained the ability to challenge such deals and that Guidelines 7 and 8 address consolidation trends and serial acquisitions.
As we approach the 60-day mark since the new HSR form's implementation on Feb. 10, we may soon gain insight into the volume of transactions receiving early termination relative to the number of second requests.
Discretion, Not Direction: The 2023 Merger Guidelines
Panelists at the spring meeting were less surprised by the FTC and DOJ decision to maintain the 2023 merger guidelines since the guidelines do not proscribe agency action.
Thomas Barnett, former DOJ assistant attorney general, surmised that the guidelines provide a list of ways in which the merger might violate the antitrust laws, but little guidance on when a transaction will violate the law.
Further to this point on predictability, Deborah Garza, former DOJ deputy assistant attorney general, highlighted the absence of safe harbors in the guidelines — a hallmark of agency guidance in the 1980s that provided businesses with greater certainty. Garza also noted that while the guidelines may set some outer limits on what the agencies can do, they do not require any action.
The FTC's first merger challenge under the Trump administration illustrates the agency's flexibility in which principles of the guidelines it applies.
During the spring meeting, Slaughter, the former FTC commissioner, heralded the FTC's unanimous challenge of a medical device merger, touting it as an example of bipartisan enforcement.
In early March, the commission had voted 4-0 to bring the challenge against GTCR BC Holdings LLC's planned $627 million acquisition of Surmodics Inc. The challenge invoked the guidelines' lowered thresholds for deeming a transaction presumptively illegal, while alleging market share and concentration levels that suggested the transaction might well have been challenged under the prior guidelines as well.
Moreover, in a separate statement, then-Commissioners Slaughter and Bedoya described the transaction as being part of a consolidation strategy. Yet notably, the FTC's complaint did not cite Guidelines 7 or 8 — which address consolidation — and instead focused squarely on head-to-head competition in price, quality, service and innovation, as well as entry barriers.
We believe that this emphasis could suggest that Ferguson's decision not to repeal the guidelines reflects less an endorsement of all the principles they espouse, and more a rejection of partisan rescissions and regulatory unpredictability.
A recurring theme throughout the spring meeting was the impact of resource constraints on the agencies' current and future caseloads. With hiring freezes and potential DOJ regional office closures, panelists warned that the loss of talent and institutional knowledge could hamper enforcement. We expect the DOJ and FTC may lean on their prosecutorial discretion and the flexibility of the guidelines to focus on priorities of the current administration, such as agriculture, labor, pharmaceuticals, pharmacy benefits managers and tech.
Selectively Aggressive Merger Enforcement, Pragmatic Approach to Remedies
As the antitrust community contemplates a second Trump term, speakers suggested that current enforcers may adopt a more deal-friendly posture than their Biden-era counterparts, yet still be more inclined to challenge mergers than previous Republican administrations.
Douglas Melamed, former acting assistant attorney general, predicted that the Trump administration will not share the Biden administration's aversion to bigness and will likely be more receptive to settlements and efficiency arguments in mergers. At the same time, Melamed expects enforcers to maintain what he called selective aggressiveness in areas aligned with the administration's priorities: agriculture, pharmaceuticals, labor and tech, as well as ESG and DEI initiatives.
Former FTC Commissioner Noah Phillips also highlighted the vigorous enforcement seen during the first Trump administration and predicted a comparable approach in the second term, noting that today's Republican party includes voices favoring greater intervention in the economy.
Consistent with this view, Ferguson commented last month that "we're not going to be deferential to decisions made in C-suites," drawing a distinction from the Bush-era FTC's more permissive approach. Still, Ferguson has frequently stated that he would "get out of the way" of nonproblematic transactions.
Ferguson reiterated this position at last week's Capitol Forum conference, one of several events occurring alongside the spring meeting, while making clear that merger challenges remain on the table: "I don't have an ideological predisposition against M&A, but I don't think it should be open season."
Gail Slater, the DOJ's assistant attorney general for the department's Antitrust Division, has similarly emphasized that she is not opposed to mergers or remedies, but she has cautioned that settlements must adequately address competitive concerns, saying that she "would not be there for a [expletive] consent decree."
Ferguson and Slater did not attend the spring meeting. But former FTC commissioners at the spring meeting also took a pragmatic approach, saying they believed that the agencies will be open to merger remedies, with former Commissioner Terrell McSweeny anticipating a preference for structural remedies.
According to former FTC Chair Jon Leibowitz, this outlook aligns with Slater's history, commenting that she was never opposed to settlements, divestitures or even behavioral remedies during her time at the FTC. We expect to see increased receptiveness to remedies at both agencies, but we agree the Trump administration is unlikely to take a permissive approach to deal review.
U.S. Conduct Enforcement Updates and Priorities
The spring meeting also put a spotlight on conduct enforcement, highlighting three areas of major focus:
- Algorithmic pricing remains under scrutiny, with courts and enforcers split on whether these tools belong under the rule of reason or per se framework — and companies are urged to exercise caution over data use and user control.
- Refusal to deal theories are back in play, as panelists explore ways to bypass the U.S. Supreme Court's 2003 decision in Verizon Communications Inc. v. Trinko through tying frameworks following a recent decision in the DOJ's case against Live Nation.
- Civil labor antitrust enforcement continues apace at both federal and state levels, with recent initiatives and legislation reinforcing scrutiny of harmful labor practices.
Pricing Algorithms in the Hot Seat
The future of algorithmic pricing was a front-and-center topic on the first day of this year's meeting, with panelists debating whether pricing algorithms will be the next frontier of Section 1 enforcement — or simply a misunderstood efficiency tool.
Pricing algorithms process far more data, and at much greater speed, than human decision-makers, generating pricing recommendations or adjusting prices automatically. While these tools are widely used across industries, antitrust scrutiny has so far focused on sectors like rental housing and hotels.
Panelists acknowledged that pricing algorithms can offer clear benefits, including faster reactions to market demand and more accurate pricing from real-time data. However, University of California, Berkeley School of Law professor and former DOJ chief economist Daniel Rubinfeld cautioned that they can just as quickly enable collusive pricing.
Courts are split on the legal standard for assessing algorithmic pricing. In early 2024, the U.S. District Court for the Middle District of Tennessee let claims against RealPage proceed under the rule of reason.
But just a year later, the U.S. District Court for the Western District of Washington allowed plaintiffs' per se claims to survive in a separate case, Duffy v. Yardi Systems Inc., siding with the DOJ and FTC's position in their joint statement of interest.
Panelists were just as divided: some saw this as a classic rule of reason case grounded in settled information exchange law, while others argued per se condemnation is squarely on the table, calling it the sparkly new version of a hub-and-spoke price-fixing conspiracy. It remains to be seen what standard courts will adopt, or whether a clear standard will emerge at all.
The degree of antitrust exposure appears to hinge on a few key factors: whether data is nonpublic, raw or aggregated, historical or forward-looking, and the level of deviation from pricing recommendations.
Much of the panel debate centered on the ability to diverge from the algorithm's recommendations, with speakers agreeing that a higher share of users accepting pricing recommendations increases the risk of liability, though the precise tipping point remains unsettled.
With enforcers, courts and academics still in a scramble over the right approach, we urge companies using these tools to conduct thorough diligence, maintain human oversight and build compliance safeguards to mitigate risk. We expect to see continued focus on pricing algorithms for the foreseeable future.
Refusal to Deal Makes a Comeback
Once thought sidelined by Trinko, the refusal to deal doctrine is regaining traction.
The legacy of Trinko continues to divide the lower courts. Defendants often cast their conduct as a straightforward refusal to deal, aiming to take advantage of Trinko's defense-friendly reading.
Plaintiffs, by contrast, have sought to frame similar conduct as tying, or the termination of a profitable course of dealing — theories some courts have accepted as viable paths to sidestep Trinko.
Filed in the U.S. District Court for the Southern District of New York last year, the DOJ's U.S. v. Live Nation case has breathed new life into this debate, with the court rejecting a Trinko analogy and allowing a tying claim to survive a motion to dismiss and proceed to discovery.
The court drew a line between mere refusal to deal and tying, emphasizing that what separates the two is an assay by the monopolist into the market that interferes with rivals' relationships with third parties.
According to the judge, plaintiffs plausibly alleged that Live Nation crossed that line by coercing its artist customers, not just rival promoters, to use its promotion services as the price of access to its venues. With discovery now underway, we await further clarity on how courts will assess these claims.
Remedies are another stumbling block for aspiring plaintiffs in this space. Even if plaintiffs could establish liability, courts have expressed discomfort with compelled dealing, which raises complex questions about terms of dealing, oversight, and even the purpose of the antitrust laws.
While not impossible, panelists emphasized that such remedies are often impractical, and suggested that plaintiffs should come prepared with concrete proposals in advance to ease the court's burden.
Looking ahead, as one speaker observed, conduct that doesn't go away will continue to be litigated, regardless of the shifting political winds.
Courts remain divided over the boundaries of refusal to deal frameworks, and until the law settles, we expect these battles to play out on a case-by-case basis.
Labor Antitrust: Civil Cases Press On
In anticipating antitrust enforcement under a second Trump term, one theme that surfaced across panels was perhaps a surprising one: continuity. What does this mean for labor antitrust enforcement?
Following a string of DOJ trial losses during the past administration, it is unclear whether Slater will continue to pursue criminal labor actions under Section 2. But both federal and state authorities were reported to remain focused on civil investigations into noncompetes, wage-fixing, and no-poach agreements.
The future of criminal no-poach cases at the federal level is decidedly uncertain. Baer acknowledged that criminal no-poach cases have proven challenging at trial, describing them as "a hard issue for juries to get their head around."
Doha Mekki, former acting assistant attorney general, repeated this point the next day, explaining that no-poach agreements are a species of market allocation — one of the most difficult categories of cases for the DOJ.
Outside of the criminal context, however, Slater and Ferguson have both signaled strong interest in pursuing labor cases. Indeed, last week, Slater convened Teamsters Local 25 and Local 804, legal experts, economists, and market participants to hear firsthand how no-poach and noncompete agreements affect workers.
For his part, Ferguson launched the Joint Labor Task Force in late February, bringing together the agency's competition, consumer protection, and economics arms in whole-of-agency fashion to coordinate labor investigations and enforcement.
States also continue to prioritize labor enforcement, with no signs of slowing. Pennsylvania, despite lacking a state antitrust law, recently enacted Act 74, limiting noncompetes for healthcare professionals to one year and only when the employee leaves voluntarily.
Speakers also praised state leadership on no-poach enforcement, highlighting the multistate efforts that led to the removal of no-poach clauses from the contracts of numerous fast-food chains.
As both federal and state enforcers will continue to take issue with labor markets, we echo Mekki's observation: "labor is here to stay."
**Note: this article originally ran in Law360
