On Oct. 29, 2026, the Antitrust Division of the U.S. Department of Justice announced recent cooperation with state attorneys general on merger investigations, including not just traditional joint investigation and consultation activities, but also the complete referral of potentially anticompetitive deals involving “predominantly intrastate effects.”
The DOJ also released a separate announcement detailing two referral cases in which New York, New Jersey, and Pennsylvania each entered into separate divestiture settlements with the merging parties, while the Antitrust Division took no separate action. The announcements are notable, given high-profile disagreements between some state attorneys general and federal antitrust authorities on recent merger-related cases where the states sought different relief.
In most cases, state and federal authorities have overlapping jurisdiction to bring enforcement cases against mergers and acquisitions. However, they have a long history of cooperation on such matters, thereby alleviating burdens on the merging parties. DOJ’s announcements suggest that “cooperation” in the future may increasingly involve states exclusively running investigations of deals involving more localized businesses, allowing federal authorities to focus resources on matters with broader regional or national impact.
Recent Divergence of Federal and State Enforcement Decisions
In general, state attorneys general possess independent authority to enforce antitrust laws, including by suing to block mergers, where there is a potential impact on their residents. Historically, however, states have cooperated with the DOJ Antitrust Division and Federal Trade Commission, resulting in an efficient, cohesive merger review process for the merging parties.
Recently, several high-profile cases involving competition at a national level have seen state attorneys general publicly disagreeing with outcomes reached by the federal enforcers and/or bringing actions independent of federal authorities. This trend has involved mergers across a variety of industries, such as consumer products, entertainment, and technology. It also has spanned presidential administrations, with states increasingly prioritizing antitrust matters.
DOJ’s Recent State Referrals and Policy Shift
These announcements may suggest that the current DOJ is hoping for a shift in how antitrust merger enforcement cooperation with states might play out in the future. In the DOJ’s announcement, Associate Attorney General Stanley E. Woodward, Jr., cited “principles of federalism” guiding the agency to focus its resources on “mergers with regional or national implications” and only “sometimes” exercising discretion to investigate local transactions where there is “an antitrust issue of national significance.” On the other hand, DOJ officials noted that the agency “welcomes leadership from state enforcers in transactions that implicate uniquely local interests, such as when the state is a purchaser … or when potential effects on competition are limited to a single state.”
DOJ highlighted two cases, both involving local asphalt-related markets, as “successful” referrals to states. The first transaction involved two companies offering asphalt pavement products and services, including to commercial and government customers. After the DOJ opened an in-depth Second Request investigation under the Hart-Scott-Rodino Act, it found competition concerns in only discrete geographic areas of New York and Pennsylvania. After a “full” referral of the matter to those states, the parties and states agreed to separate settlements that included the divestiture of four facilities.
The second referral transaction involved the merger of two hot-mix asphalt providers in New Jersey. The DOJ kept its investigation open without issuing a Second Request in order “to monitor progress” with New Jersey, and the parties ultimately entered into a settlement with the state alone to divest certain local facilities.
Key Takeaways
- Cooperation among federal and state antitrust authorities in merger investigations is not new, but it has often occurred in a manner that minimizes subjecting the merging parties to duplicative efforts. Notably, the DOJ historically assumed the lead in many antitrust enforcement actions while states shadowed; more recently, some state attorneys general have taken a more active, and sometimes independent, role.
- Recently, some state attorneys general have been willing to bring enforcement cases on their own and have diverged from outcomes sought by federal enforcers. Historically, this has been difficult in light of more limited resources at the state level, but lately, some states have leveraged outside private law firms to assist in these efforts and sought fee recoupment from the parties where available.
- DOJ’s recent “referral” activities may suggest that merging parties should consider giving increased consideration to a state-specific strategy for their merger clearances, particularly where overlapping businesses operate in a limited number of local markets.