Insights

On April 17, 2025, Arkansas recently became the first state to enact broad restrictions on pharmacy benefit managers (“PBMs”) owning retail pharmacies within the state.

Two bills currently making their way through the California Legislature could, if passed, have far-reaching implications for how companies doing business in California price their goods and services. California Assembly Bill 325 (Aguiar-Curry) and Senate Bill 384 (Wahab), as drafted, seek broad prohibitions against the use, distribution of, and inputs into algorithmic pricing and supply software, even where there is no coordination among competitors on the use of such software or the setting of prices. Their enactment would reach every business that uses software applications to develop pricing, supply levels and other commercial terms in California. Crowell & Moring represents the California Chamber of Commerce (“CalChamber”) in monitoring, analyzing and responding to the proposed bills.

In a landmark verdict on April 14, 2025, the U.S. Department of Justice Antitrust Division notched its first-ever jury trial conviction for criminal wage-fixing under the Sherman Act in United States v. Eduardo Lopez in the District of Nevada. A home health care staffing executive, Eduardo (“Eddie”) Lopez, was found guilty of (1) conspiring with several competing home healthcare staffing agencies to fix the wages of home health nurses in the Las Vegas area, and (2) defrauding the unwitting buyer of his agency by concealing the then-ongoing antitrust investigation into nurse wage and hiring practices. It is worth noting, however, that while the Lopez conviction is a significant milestone for the DOJ’s campaign into labor antitrust violations, wage-fixing cases may be more straightforward to prosecute than no-poach agreements, where the DOJ still has not prevailed before a jury. This victory nonetheless affirms the DOJ’s ability to criminally prosecute labor market collusion as a criminal offense after numerous failed attempts, signaling the prudence of further caution for companies and individuals to mitigate risk in labor antitrust markets.

The settlement approval hearing in In re College Athlete NIL Litigation, No. 4:20-cv-03919 (N.D. Cal.) is set for April 7, 2025. Commonly known as the “House Settlement,” the pending resolution between plaintiffs and the NCAA, if approved by Judge Claudia Wilken, could have far-reaching implications for higher education NCAA-member institutions and student-athletes.

On March 27, 2025, the Department of Justice Antitrust Division launched an Anticompetitive Regulations Task Force (the “Task Force”) designed to identify and eliminate state and federal laws and regulations that are deemed to hinder free market competition. The Task Force will bring together attorneys, economists, and other staff from across the Division and interagency partners, and its target sectors include the transportation, healthcare, energy, food & agriculture, and housing industries.

On March 20, 2025, Florida Attorney General James Uthmeier announced an investigation into whether two leading proxy advisors’ advice involving the consideration of Environmental, Social, and Governance (ESG) and Diversity, Equity, and Inclusion (DEI) constitutes deceptive or unfair trade practices under Florida law or a violation of Florida antitrust law.

On March 18, President Trump fired the Federal Trade Commission’s two Democratic Commissioners, Alvaro Bedoya and Rebecca Kelly Slaughter. The move represents the latest effort by the Trump administration to exert greater control over executive-branch agencies, including bi-partisan independent agencies like the FTC.

On February 26, the European Commission presented its Clean Industrial Deal (CID). As a follow-up to the European Green Deal, the CID aims to strengthen the competitiveness of European industry while at the same time accelerating the decarbonization of the economy.

On March 5, 2025, the European Commission presented a comprehensive Action Plan to boost the global competitiveness of the European Union’s automotive industry and support its transition to zero-emission, connected, and automated vehicles.

Growing focus on antitrust enforcement at the federal level in recent years has been accompanied by a similar trend at the state level. Notably, multiple states have enacted or are considering enacting various legislative or regulatory changes that would create new regulatory requirements for businesses and make antitrust suits significantly easier for state attorneys general and private plaintiffs. These include new pre-transaction notice requirements, as well as the expansion of existing state antitrust statutes to cover more types of conduct while shifting the burden and expense of litigation from plaintiffs to defendants. In several cases, states have expressed a clear intent to increase enforcement related to the private equity and healthcare industries specifically.

Federal Trade Commission Chair Andrew Ferguson announced on February 24, 2025, that the FTC will create the agency’s “first-ever” labor task force, signaling the agency’s continued focus on competition in labor markets, answering an open question from companies as to the fate of the agency’s no-poach and non-compete enforcement priorities. On February 26 Chair Ferguson followed up on his announcement with a Directive Regarding Labor Markets Task Force, providing additional details on the task force and the agency’s priorities.

California’s Assembly Bill 824 (“AB 824”) was enacted in October 2019 to curb “reverse payment” settlements among pharmaceutical companies that are used to resolve or settle patent infringement claims. The law establishes a presumption that such settlement agreements, through which a brand-name manufacturer compensates a generic manufacturer to forego its patent challenges in exchange for an agreement to enter at a later date (but before the expiration of the branded company’s patents), are anticompetitive and unlawful. AB 824 imposes significant financial penalties, with violators facing civil fines of up to three times the value received from the agreement or $20 million, whichever is greater.

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

The Southern District of Texas published an unsealed version of its January 31, 2025 opinion denying the Federal Trade Commission’s (FTC) motion for a preliminary injunction to enjoin Tempur Sealy’s acquisition of Mattress Firm. The decision marks another loss for vertical merger enforcement efforts, particularly agency efforts to block these deals outright rather than accept settlement “fixes.” This case—coupled with other agency losses like AT&T/Time Warner and Microsoft/Activision—will likely make it even more difficult for enforcers to win vertical merger challenges, particularly when the merging parties lack sufficient market share to foreclose competitors and offer remedies to fix the alleged competitive concerns.

On October 4, 2024, the Court of Justice of the EU (CJEU) ruled in the Diarra case that the transfer rules of the Fédération Internationale Football Association (FIFA) regarding the termination of player contracts without just cause were incompatible with EU internal market and competition laws. Following this landmark ruling, FIFA published temporary changes to its transfer rules on December 23, 2024. This judgment could have a significant impact on the economic model for football in Europe, and on the balance of power both between clubs, and between clubs and their players.

Over the last year, the California Law Revision Commission (“CLRC”), the influential body that makes recommendations to the legislature, has been considering sweeping reforms to California’s antitrust law, the Cartwright Act. Recently, the CLRC voted to propose several changes to the Cartwright Act aimed at expanding the reach and scope of the law. Companies doing business in California should pay close attention to this ongoing process because of the potentially dramatic impact such new state laws could have, including increased exposure to antitrust litigation. Crowell & Moring is representing the California Chamber of Commerce (“CalChamber”) in monitoring, analyzing and responding to the CLRC’s recommendations.

In the last days of the Biden Administration, the Antitrust Division (DOJ) took the rare step of bringing two separate enforcement actions relating to violations of the Hart-Scott-Rodino (HSR) Act. The DOJ announced a record $5.6 million civil penalty for “gun jumping” in connection with a 2021 acquisition of a crude oil producer. Days later, the agency sued a private equity fund for violating the HSR rules by failing to make required notifications and omitting or altering required “Item 4” documents.

Four days before the change in administration and in the wake of several high-profile trial losses in cases involving alleged “no-poach” and wage-fixing agreements, the Federal Trade Commission (FTC) and the Department of Justice, Antitrust Division (DOJ) jointly approved new guidelines, Antitrust Guidelines for Business Activities Affecting Workers” (the “2025 Guidelines” or “Guidelines”), that explain how antitrust enforcers have identified and assessed whether an agreement or business practice affecting workers may violate the antitrust laws.  The 2025 Guidelines were voted out at the FTC on a split 3-2 vote along party lines, with a brief but scathing dissenting statement from the Republican commissioners (including incoming FTC Chair Andrew Ferguson) that raises serious doubts as to how well the Guidelines reflect the approach the agencies will take during the next four years.  On the eve of the incoming Trump Administration, the 2025 Guidelines replaced the previous joint DOJ and FTC antitrust guidelines regarding employment practices that were issued in 2016, “Antitrust Guidance for Human Resource Professionals” (the “2016 Guidelines”), during the tail-end of the Obama Administration.

The pending overhaul of the Hart-Scott-Rodino (HSR) rules faces a new challenge. Published in the Federal Register in November, the final HSR modifications were set to become effective on February 10, but late last week the U.S. Chamber of Commerce, a local Chamber chapter, the Business Roundtable, and the American Investment Counsel filed a complaint seeking to block their implementation. While the complaint does not seek a temporary restraining order or a preliminary injunction, the case further highlights the expanded regulations and additional burden the agencies are seeking to impose on merging parties, and places a spotlight on the issue as the Trump Administration prepares to take control of the antitrust agencies.

With the coming of the new presidential administration, state antitrust enforcement is poised to intensify. We expect both Republican and Democratic Attorneys General (AGs) to actively pursue antitrust investigations and litigation. They will fill in where the U.S. Department of Justice and Federal Trade Commission reduce focus but are also sure to work, including on a bipartisan basis, with their federal counterparts. Below, we explore how state AGs are likely to shape the antitrust landscape in the coming four years, and the areas where we anticipate significant enforcement activity.