States Move To Take More Active Role in Merger Settlements

In recent years, state Attorneys General (AGs) have taken a more active approach in antitrust enforcement matters related to mergers and acquisitions. For example, earlier this year, laws in Washington and Colorado requiring parties to submit pre-merger notification filings went into effect. AGs are also generally enforcing the antitrust laws more aggressively — ensuring that state interests are protected in negotiated settlements between federal antitrust authorities and merging parties.

The Hewlett Packard Enterprise (HPE) case is a prime example. In January 2025, the U.S. Department of Justice (DOJ) challenged HPE’s $14 billion acquisition of Juniper Networks. DOJ alleged that the deal would harm competition, raise prices, reduce innovation, and diminish choice in the market for enterprise-grade wireless local area network solutions. According to DOJ, the proposed transaction would further consolidate an already highly concentrated market and leave two companies commanding over 70% of the market for enterprise wireless networking solutions.

In June 2025, weeks before a court was set to hear the challenge, DOJ agreed to settle and drop its claims. The settlement mandates that the merged firm license Juniper’s artificial intelligence technology to independent competitors and requires HPE to divest its Instant On unit, which caters to small- and mid-sized businesses. But the settlement almost immediately drew scrutiny when two high-ranking DOJ Antitrust Division officials, Roger Alford and Bill Rinner, were fired for objecting to lobbyists and politically connected lawyers’ involvement in the settlement negotiations.

In light of these press reports and the potential controversy, state AGs moved to intervene. Twelve states and the District of Columbia filed a motion urging the court to conduct a full evidentiary hearing under the Tunney Act to review what they describe as a “tainted” settlement. Passed in 1974, the Tunney Act requires federal courts to review each DOJ consent decree in civil antitrust cases to ensure that the proposed remedy is in the public interest. The states argue that the proposed settlement in HPE/Juniper was “the product of undue influence by well-connected lobbyists” and fails to address the anticompetitive harm alleged in DOJ’s complaint. The states seek to participate in the court’s review of the settlement, review records related to the settlement and the process that led to it, and obtain a pause in the merging parties’ integration efforts. Further, the states claim intervention would give them an efficient path forward to challenge the merger if necessary.

Although the federal antitrust agencies and state AGs often are aligned in their approach to antitrust enforcement, this case highlights the states’ willingness to step in and assert their own interests when enforcement priorities diverge. We will closely monitor how this process unfolds as a signal of how states may choose to participate in future merger settlements.

If you have questions about this Enforcement Edge post, please contact the authors or any of their colleagues in Arnold & Porter’s Antitrust or White Collar Defense & Investigations practice groups.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.