Antitrust Agency Insights: Developments at the U.S. Antitrust Enforcement Agencies — First Quarter 2026

Letter From the Editors

Antitrust Agencies’ Focus on Competitor Collaborations

In the first quarter of 2026, the U.S. antitrust agencies, the U.S. Department of Justice, Antitrust Division (DOJ), and the Federal Trade Commission (FTC or Commission), signaled a continued focus on enforcement relating to the sharing of competitively-sensitive information as well as a renewed focus on the importance of guidance addressing how competitors may collaborate without running afoul of the antitrust laws.

On February 23, 2026, the DOJ and FTC jointly announced a public inquiry seeking input on potential new guidance governing collaborations among competitors to replace long-standing guidance withdrawn at the end of the previous administration.¹ The joint inquiry aims to develop guidance concerning “the range of collaborations utilized to drive innovation and promote competition in the modern economy.”² Some of the specific areas of inquiry on which the agencies are seeking input include joint licensing agreements, conditional dealing, algorithmic pricing, information and data sharing, and labor collaborations.

The agencies last issued joint collaboration guidance in April 2000 with the Antitrust Guidelines for Collaborations Among Competitors (the 2000 Guidelines).³ The 2000 Guidelines were withdrawn in December 2024.⁴ The agencies at the time explained that the 2000 Guidelines failed to reflect significant case law on competitor collaborations and did not address the competitive effects of modern business combinations or rapidly evolving technologies such as artificial intelligence and algorithmic pricing.⁵

Current leadership at both agencies has emphasized the need for clear guidance to provide businesses with the predictability and direction they need to collaborate and grow while avoiding anticompetitive conduct that risks raising prices or stifling innovation. FTC Chair Andrew Ferguson, who dissented from the withdrawal of the 2000 Guidelines in 2024,⁶ stated that the decision “left millions of businesses in the dark,” arguing that “in an everchanging economy, businesses need transparency and predictability from enforcers more than ever.”⁷ More recently, DOJ Acting Assistant Attorney General (AAG) Omeed Assefi agreed that clear guidance is needed: “Replacing the withdrawn guidelines is key to promoting certainty, allowing American businesses to work together effectively and lawfully, and enabling the private antitrust bar to enhance compliance in this area.”⁸ Acting AAG Assefi underscored that “procompetitive collaborations are not only permissible but also encouraged in a complex and dynamic economic environment.”⁹

The call for clear collaboration guidance comes as the federal antitrust agencies maintain a focus on information-sharing between competitors. The DOJ recently filed two statements of interest in cases involving a third-party benchmarking service. On March 25, 2026, the DOJ filed a statement of interest in In re Turkey Antitrust Litigation, a case alleging that turkey producers illegally exchanged confidential price data through a platform called Agri Stats and used the information to cut the supply of birds and raise prices to artificially high levels.¹⁰ The complaint included a rule-of-reason claim based on an alleged conspiracy to exchange competitively sensitive information. The DOJ took no position on the merits. The DOJ’s statement rejected defendants’ suggestion that plaintiffs must provide evidence of individualized or non-aggregated data exchanged by competitors, emphasizing that such proof is unnecessary where the circumstances as a whole indicate a tendency for anticompetitive harm. The DOJ further disagreed with defendants’ contention that an information‑exchange claim requires direct econometric evidence of market‑wide price increases through a “before‑and‑after” regression analysis, reasoning that such a requirement would improperly heighten the standard for what qualifies as direct evidence and improperly discount the indirect method of proof, which does not require proof of direct anticompetitive effects.

On February 27, 2026, the DOJ filed a statement of interest in In re Frozen Potato Products Litigation, a case alleging that producers of frozen potato products harmed consumers by exchanging competitively sensitive information through Circana’s benchmarking service PotatoTrack.¹¹ The DOJ took no position on the merits but argued that concerted action may exist where competitors share information with the mutual expectation of reciprocity, regardless of whether a third party facilitated the information exchange. The statement also pushed back on the idea that, where the exchanged information is aggregated and backward-looking, it is incapable of generating anticompetitive effects. With respect to the plaintiffs’ standalone information-sharing claim, the DOJ articulated a position that, in theory, indirect evidence may be used to show the defendants collectively have market power and that the alleged information sharing is likely to harm competition, even without proof of an agreement to fix prices. In both statements, the DOJ reiterated that there is no special legal presumption that an information exchange is reasonable, other than the preponderance of the evidence standard applicable to all elements of the claim.

These statements of interest by the DOJ continue a trend across both the first Trump and Biden administrations of the DOJ using amicus briefs and statements of interest to clarify its positions on information sharing. The DOJ has argued that information sharing alone can violate Section 1, even without proof of an agreement to fix prices; and information exchanges that report only aggregated data can violate the antitrust laws, even where the information is not linked to specific competitors.¹² For a standalone information-sharing claim, DOJ has stated that regardless of whether an agreement can be inferred under a plus-factors-style analysis, a distinct theory of concerted action is available when parties manifest acceptance of an invitation for collective action.¹³ With regards to algorithmic pricing, the DOJ has argued that even when not binding, competitors’ joint use of pricing algorithms can have anticompetitive effects by creating a baseline for competitive decisions and can “distort the competitive process by maximizing price increases, minimizing price decreases, aligning prices among competitors, creating price floors, discouraging discounts, or increasing sellers’ pricing power.”¹⁴ While these statements are not necessarily determinative of future guidance, they offer insight into how the agencies are likely to approach issues such as algorithmic collusion, benchmarking, and information exchanges among competitors.

Despite the uncertainty in this area, there are measures companies can undertake to mitigate risk. Companies should conduct due diligence on all software and platforms that involve sharing competitively sensitive information outside the organization, especially to any competitor companies. For any benchmarking services, companies should evaluate what inputs are used by the software or platform and consider whether the output data implicates independent decision-making. Lastly, companies should consider seeking antitrust counsel to advise on ways to manage risk and ensure that antitrust compliance programs account for the agencies’ current approach.

FTC to Litigate Merger Challenges Exclusively in Federal Court

In recent remarks at George Mason University’s Antonin Scalia Law School Antitrust Symposium, FTC Chair Ferguson stated that the agency will pursue merger challenges exclusively in federal court, abandoning its longstanding practice of authorizing staff to seek a preliminary injunction in federal court while initiating proceedings before the FTC’s in-house administrative law judges.¹⁵ This two-track approach involves the FTC simultaneously seeking a preliminary injunction in federal court to temporarily stop deals from closing, while also litigating the merits in its in-house administrative tribunal.

Chair Ferguson’s position was previewed in the FTC’s December 2025 decision to challenge Henkel AG & Co.’s proposed acquisition of Liquid Nails exclusively in federal court without simultaneously pursuing an administrative court proceeding.¹⁶ In his speech, Chair Ferguson justified this shift by pointing to increased institutional credibility and the ability to avoid constitutional challenges to the FTC’s administrative process.¹⁷ “There’s a lot more credibility in the agency’s enforcement when the final determiner of whether the law has been violated is not the person making the accusation,” Chair Ferguson said. “No man ought to sit in judgement of his own case.”¹⁸ He contrasted this approach with that of the DOJ, which relies solely on the federal courts to resolve merger challenges. Chair Ferguson stated that the FTC should do the same: “My view is we ought to just litigate this in federal court, both to avoid the constitutional challenges every time you bring a merger case ... and to align with the standard that the Department of Justice has to comply with in order to get an injunction of a merger.”¹⁹

FTC preliminary injunction proceedings have long looked much like full trials on the merits. As a practical matter, Chair Ferguson also acknowledged that the preliminary injunction decision is usually the “end of the question,” because merging companies often abandon deals if temporarily enjoined.²⁰ The FTC often will abandon its administrative proceeding if it loses its request for a preliminary injunction.²¹ Even when both the preliminary injunction and administrative complaints are issued simultaneously, a full administrative trial on the merits can take a year or more before an initial decision is reached (and even longer for an appeal to the full Commission).

It remains to be seen whether the change will have a meaningful impact on the timelines for resolving merger challenges and the FTC’s likelihood of success in federal court. For example, timelines for permanent injunction proceedings in federal court can vary significantly depending on the court’s schedule and docket. Even though the standard for a court to issue a preliminary injunction under Section 13(b) of the FTC Act is different than finding that a transaction violates Section 7 of the Clayton Act,²² courts generally have approached preliminary injunctions carefully and focused on the FTC’s likelihood of success, suggesting that the standard may not vary significantly in practice. Importantly, however, the change is intended to counter the perception that the FTC is using its process to stop deals, rather than giving the parties a fair shake with a neutral arbiter. Finally, while the impact on specific deals may be unclear, the change may give fodder to arguments that the FTC’s antitrust enforcement program should be combined with the DOJ’s,²³ if there is no difference in the merger challenge procedures.

FTC/DOJ Staff Updates

AAG Gail Slater and DAAG Mark Hamer Step Down

DOJ AAG Gail Slater stepped down on February 12, 2026. Slater had served in the role since March 2025. Deputy AAG (DAAG) for litigation and civil enforcement Mark Hamer left his role on February 9, 2026.

Acting AAG Omeed A. Assefi now oversees the Antitrust Division. Dina Kallay continues to serve as DAAG for international, policy, and appellate matters, and Chetan Sanghvi remains in charge of economic analysis. Acting AAG Assefi named Nicole Sarrine as Acting DAAG for civil conduct matters and Charlie Beller as Acting DAAG for mergers. Daniel Glad was promoted to DAAG for criminal enforcement, a position which was previously held by Acting AAG Assefi.

David MacNeil Nominated as an FTC Commissioner

On January 13, 2026, Trump nominated the founder and CEO of automobile accessories-maker WeatherTech, David MacNeil, to a seat on the Commission. If confirmed, MacNeil will take over the Commissioner seat previously held by Melissa Holyoak, who stepped down in November and is now the First Assistant U.S. Attorney for the District of Utah pending confirmation to serve as the U.S. Attorney for the District of Utah. At present, there are only two members of the Commission, Chair Ferguson and Commissioner Mark R. Meador, who are both Republicans.

• Read the White House Press Release

FTC Cases and Proceedings

Alcon Terminates Proposed Acquisition of LENSAR Following FTC Investigation

Following an FTC investigation, Alcon, Inc. and Alcon Research, LLC abandoned the proposed purchase of LENSAR, Inc. on March 16, 2026. According to the FTC, the deal would have merged two providers of laser systems used in femtosecond laser-assisted cataract surgery, known as FLACS. According to the FTC, the FTC’s American Competition Enforcement Division (comprised of competition enforcement attorneys located in the FTC’s regional offices) identified competitive concerns with the transaction.

• Read the FTC Press Release 

FTC Finalizes Consent Order in Boeing Acquisition of Spirit AeroSystems

On February 17, 2026, the FTC finalized a consent order involving Boeing’s $8.3 billion acquisition of Spirit AeroSystems. Boeing will sell Spirit’s aerostructures units that supply Airbus to Airbus, and its Subang, Malaysia operation to CTRM. The consent order addresses the FTC’s concerns that the acquisition would give Boeing the ability and incentive to raise the cost of or degrade Airbus’ access to inputs for its competing commercial aircraft, in addition to giving Boeing the ability and incentive to limit rival military aircraft companies’ access to Spirit’s aerostructure products and technologies. Following a public comment period, the Commission voted 2-0 to approve the final order.

• Read the Press Release
• Read the Finalized Consent Order 

FTC Partially Settles PBM Enforcement Challenge

The FTC and pharmacy benefit manager (PBM) Express Scripts reached a settlement on February 4, 2026 in the administrative proceeding where the FTC alleged that the three largest PBMs engaged in anticompetitive and unfair rebating practices that artificially inflated the list price of insulin drugs. As part of the settlement, Express Scripts agreed to a variety of conditions, including that it will stop listing preferred drugs at the high wholesale acquisition cost rather than lower cost versions on its standard formularies and offer access to Trump Rx’s direct-to-consumer platform as part of its standard offerings. In addition, Express Scripts will establish a standard offering for plan sponsors where the out-of-pocket costs for patients are based on the net cost of a drug, rather than the list price. It will also provide full access to its Patient Assurance Program to all individuals if insulin is on a formulary, unless the plan sponsor chooses to opt out. Other changes include offering a standard benefit design that allows plan sponsors to transfer off of rebates or spread pricing, and delinking drug manufacturers’ payouts from list prices in standard benefits. On March 23, 2026, FTC staff and PBM Caremark jointly moved to withdraw the matter from adjudication for the purpose of allowing the Commission to consider a proposed settlement, which was filed under seal. PBM respondent Optum and FTC staff filed a joint motion to extend the stay of the administrative proceeding on April 13, 2026 to provide time for settlement discussions to progress.

• Read the Press Release
• Read the Settlement

Proposed FTC Order Requires Divestitures in Sevita’s Acquisition of BrightSpring

On January 30, 2026, the FTC reached an agreement that conditioned Sevita Health’s $835 million acquisition of BrightSpring Health Services Inc.’s community-living business on the sale of more than 100 intermediate care facilities (ICF). The FTC’s complaint alleged that the acquisition would lead to a reduction in the quality of ICF services, including a reduced incentive to improve facilities, staffing levels and training, care standards, safety protocols, and individualized services. The Commission vote was 2-0.

• Read the Complaint
• Read the Proposed Consent Order
• Read the Press Release

FTC Appeals Ruling in FTC v. Meta Lawsuit Challenging Acquisitions of Instagram and WhatsApp

After a ruling in favor of Meta in the FTC v. Meta lawsuit, the FTC filed an appeal with the D.C. Circuit Court that targeted both the facts and the law of U.S. District Judge James E. Boasberg’s November decision. FTC Bureau of Competition Director Daniel Guarnera stated that “Meta has maintained its dominant position and record profits for well over a decade not through legitimate competition, but by buying its most significant competitive threats,” and that “[t]he Trump-Vance FTC will continue fighting its historic case against Meta.”

• Read the Press Release

FTC Wins Preliminary Injunction To Block Edwards/JenaValve Merger

On January 9, 2026, Judge Rudolph Contreras in the U.S. District Court for the District of Columbia granted the FTC’s request for a preliminary injunction in the agency’s challenge to the proposed acquisition of medical device startup JenaValve Technology, Inc. (JenaValve) by Edwards Lifesciences Corporation (Edwards). Despite arguments from Edwards and JenaValve that the merger would benefit high-risk patients, the court agreed with the FTC that the proposed merger would harm competition in a specialized cardiac device market where no product has yet received clearance from the U.S. Food and Drug Administration. The parties abandoned the transaction shortly thereafter.

• Read the Press Release
• Read the Arnold & Porter Client Advisory

FTC Policy

FTC Endorses Florida Court Decision Ending the ABA’s Role as Sole Accrediting Agency

On March 31, 2026, FTC staff endorsed the Florida Supreme Court’s decision to amend Rule 4-13.2, which had required that applicants graduate from an American Bar Association (ABA)-accredited school to be eligible to take the Florida Bar exam. The court designed its rule change to “create the opportunity for additional entities to carry out an accrediting and gatekeeping function.” In a letter to the court, FTC staff claimed that the ABA standards for law school accreditation impose an elitist model of legal education, driving up the cost of legal education and thereby limiting the supply of lawyers. The letter acknowledged that when it strikes the right balance, accreditation can be procompetitive. However, according to the FTC staff, ABA accreditation served the interests of lawyers and law school faculty who dominate the ABA, while injuring consumers of legal services and saddling law students with high costs.

• Read the Press Release
• Read the Letter

FTC Launches Healthcare Task Force

On March 20, 2026, Chair Ferguson announced the formation of a Healthcare Task Force by the FTC’s Bureaus of Competition, Consumer Protection, and Economics, as well as the Office of Policy Planning and Office of Technology. The Healthcare Task Force will lead targeted enforcement and advocacy initiatives focused on key priorities, devise agency-wide strategies on investigations, institute a proactive and strategic approach to identifying amicus and statement of interest opportunities, and identify emerging issues and new priority areas for enforcement and advocacy. The Healthcare Task Force’s mandate will include seeking to expand its membership to agency and law enforcement partners with relevant expertise and complementary roles, including the U.S. Department of Health and Human Services and the U.S. Department of Justice.

• Read the Press Release
• Read the Memorandum

FTC Chair Ferguson Issues Warning Letters to Law Firms

On January 30, 2026, Chair Ferguson issued a letter to 42 law firms for their purported participation in an outside diversity, equity, and inclusion program, which he characterized as “potentially anticompetitive collusion.” The letter reminds law firms of the FTC’s view that collusion in hiring practices, including through competitors coordinating on the personal characteristics of their candidate pools and sharing sensitive information about pay and benefits, can violate the antitrust laws.

• Read the Warning Letter (Template)
• Read the Press Release

DOJ Cases and Proceedings

DOJ Sues New York-Presbyterian Hospital for Allegedly Anticompetitive Healthcare Contracts

On March 26, 2026, the DOJ and the U.S. Attorney’s Office for the Southern District of New York together filed a lawsuit against New York-Presbyterian Hospital under Section 1 of the Sherman Act. The complaint alleges that New York-Presbyterian’s contracts with health insurance companies unlawfully denied patients the choice of insurance plans that prioritized its lower-cost competitors — claims that are similar to those in the DOJ’s case against OhioHealth that we discuss below. According to the DOJ, these unlawful restrictions insulate New York-Presbyterian from price competition, limiting its rival hospitals from competing for patients based on lower prices or better value, and prevent the development of budget-conscious plans.

• Read the Press Release
• Read the Complaint

DOJ Reaches Settlement With Live Nation During Trial

On March 9, 2026, the DOJ reached a settlement with Live Nation midway through a trial over claims of unlawful monopolization for tying ticket sales to the use of its venues. State plaintiffs, Arkansas, South Dakota, and Nebraska, also settled their claims. The settlement calls for Live Nation to offer a standalone version of Ticketmaster’s ticketing technology system that online ticketing rivals can use themselves. It also requires the divestiture of exclusive long-term booking agreements that Live Nation controls for at least 13 amphitheaters and implements a cap on certain ticketing service fees. It also directed a settlement fund of more than $280 million to be used for state claims. More than 30 states and the District of Columbia are still actively litigating the case.

• Read the Term Sheet

DOJ Sues OhioHealth for Allegedly Anticompetitive Healthcare Contracts

On February 20, 2026, the DOJ and the Attorney General of Ohio together filed a civil antitrust lawsuit challenging OhioHealth Corporation’s (OhioHealth) allegedly anticompetitive contract restrictions that force Ohio patients to pay higher prices for healthcare. The complaint alleges that OhioHealth uses its market power in the Columbus, Ohio region to protect its dominance and maintain its high prices by preventing health plans from offering insurance coverage that includes lower-cost hospitals and other providers. According to DOJ and the Attorney General of Ohio, OhioHealth’s contracts also allegedly prevent insurers from even informing patients about lower-cost options.

• Read the Complaint
• Read the Press Release

DOJ and USPS Make First-Ever Whistleblower Payment

On January 29, 2026, the DOJ announced the first monetary award issued under the Antitrust Whistleblower Rewards Program, launched last July in coordination with the U.S. Postal Service. DOJ will award the whistleblower $1 million for reporting antitrust and fraud violations by EBLOCK Corporation (EBLOCK), an online used vehicle auction platform. EBLOCK and DOJ resolved the resulting charges through a Deferred Prosecution Agreement, under which EBLOCK agreed to pay a $3.28 million penalty.

• Read the Press Release
• Read the Arnold & Porter Client Advisory

DOJ Requires Divestitures in Reddy Ice/Arctic Glacier Deal

On January 30, 2026, the DOJ reached a deal to allow Reddy Ice, the largest packaged ice producer in the U.S., to move ahead with its planned $126 million acquisition of rival Arctic Glacier, conditioned on the sale of assets in five geographic areas to fix potential overlaps. The DOJ said the proposed acquisition would have further consolidated an already-concentrated industry, especially for retail chains that sell packaged ice, along with airlines and airline caterers.

• Read the Complaint
• Read the Proposed Final Judgment
• Read the Press Release

DOJ Requires Divestiture in the Columbus McKinnon/Kito Crosby Deal

On January 29, 2026, the DOJ reached a deal requiring Columbus McKinnon Corp. to sell its power chain hoist and chains businesses in order to complete the company’s $2.7 billion purchase of Kito Crosby Ltd. from funds managed by KKR. The DOJ said the buyer and target are two of the country’s leading manufacturers of electric chain hoists and overhead lifting chains used for material handling.

• Read the Complaint
• Read the Competitive Impact Statement
• Read the Proposed Final Judgment
• Read the Press Release

DOJ Requests Court Approval of HPE/Juniper Settlement

On January 5, 2026, the DOJ requested court approval for its settlement that would end a challenge of Hewlett Packard Enterprise’s (HPE) acquisition of a networking equipment rival Juniper Networks, despite objections raised by State AGs who intervened over allegations of improper lobbying influence. U.S. District Judge P. Casey Pitts held oral argument on the motion for entry of proposed final judgment on March 23, 2026, hearing from attorneys for DOJ, HPE, and the State Intervenors.

DOJ Policy

DOJ Files Statement of Interest in Turkey Price-Fixing Case

On March 25, 2026, the DOJ filed a statement of interest in In re Turkey Antitrust Litigation, whose complaint alleges a rule of reason claim based on an alleged conspiracy to exchange competitively sensitive information, and a per se claim based on an alleged conspiracy to fix prices by restraining the supply of turkey products. The DOJ’s statement argues that the defendants’ summary judgment motion misconstrues the scope of the per se rule by asking the court in a price-fixing case to recognize an intermediate category of “hybrid” restraints between vertical and horizontal agreements. The statement also contended that the defendants mischaracterize several legal standards applicable to information-exchange claims: “Contrary to their arguments, competitors’ exchanges of competitively sensitive information are not ‘presumptively lawful;’ can be anticompetitive even if they do not consist of individual competitors’ information; and do not require direct econometric evidence of market wide price increases.”

• Read the Statement of Interest

DOJ Files Statement of Interest in Frozen Potato Price-Fixing Case

On February 27, 2026, the DOJ filed a statement of interest in In re Frozen Potato Products Litigation, a case arising from allegations that producers of frozen potato products, such as frozen French fries and hash browns, harmed consumers by exchanging competitively sensitive information with each other through Circana’s benchmarking service PotatoTrack. The statement recommended that the court reject a motion to dismiss claims brought by potato purchasers, reasoning that courts should not assume these information-sharing arrangements are harmless, and should instead carefully examine whether the practice actually hurts consumers by facilitating concerted decision-making.

• Read the Statement of Interest

DOJ Files Statement of Interest in Florida No-Poach, Wage-Fixing Conspiracy Case

On February 27, 2026, the DOJ filed a statement of interest in John Herzog, et al. v. Fluor Federal Services, Inc., et al., a case where defendant contractors and subcontractors allegedly agreed to fix their workers’ wage ranges and prevented a site inspector from moving to another subcontractor due to a no-poach agreement. The statement argues that companies cannot escape per se liability for such violations just because they involve a vertical relationship, such as between contractors and subcontractors, instead of direct competitors, and encourages the court to look past the labels and judge whether the alleged conspiracy restrains the defendants’ competition over employees and their wages.

• Read the Statement of Interest

DOJ and USPTO File Statement of Interest in Patent Infringement Suit

On February 27, 2026, the DOJ and the U.S. Patent and Trademark Office (USPTO) filed a statement of interest in Collision Communications Inc. v. Samsung Electronics Co., et al., a patent infringement lawsuit wherein Collision moved for a permanent injunction blocking Samsung from “further infringing” on one of its cellular patents. Though filed in the case, the DOJ and USPTO made clear that “the United States does not take a position on the outcome of these questions on the evidence before the Court in the instant case, or on the ultimate question of whether the Court should exercise its discretion to issue an injunction here.” Instead it was to “provide the views of the Antitrust Division and the USPTO on considerations relevant to assessing whether a non-practicing patentee has demonstrated irreparable harm and the inadequacy of monetary damages to compensate for the harm of continuing infringement.” The statement explained that unduly limiting patentees’ ability to seek injunctive relief to block patent infringement undermines the incentive to innovate. It further stated that non-practicing patentees should not be categorically denied the opportunity for injunctive relief and, under certain circumstances, such patentees can demonstrate irreparable harm and the inadequacy of monetary damages to compensate for the harm of continuing infringement.

• Read the Statement of Interest
• Read the Press Release

Interagency Initiatives

FTC and DOJ Seek Public Comment on the HSR Form Following Vacatur of New HSR Form By District Judge

On March 25, 2026, the FTC and DOJ launched a joint public inquiry requesting public comment on the effectiveness of the updated HSR form, which had been in place since February 2025. A federal district court vacated the updated HSR form on February 12, 2026. U.S. District Judge Jeremy D. Kernodle said that the FTC had not shown the costs on merging companies outweigh the claimed benefits of dramatically increasing the amount of information that must be provided upfront when giving notice of a transaction. On March 19, 2026, the U.S. Court of Appeals for the Fifth Circuit denied the FTC’s motion for a stay pending appeal, so the FTC is now accepting HSR filings using the Form and Instructions that were in place before February 10, 2025. In the joint request for public comment, the agencies seek to ensure that the requirements of the updated form do not impose burdens on filers that outweigh the usefulness of the information provided to the FTC and DOJ. The FTC stated that it “continues to believe that the prior, nearly 50-year-old form is insufficient to review modern mergers and acquisitions.” Regardless of the outcome of the litigation challenging the updated form, the FTC is considering engaging in a new rulemaking process. The agencies are accepting comments until May 26, 2026.

• Read the Press Release
• Read the Request for Public Comment
• Read the District Court Opinion

FTC and DOJ Seek Public Comment for Guidance on Business Collaborations

On February 23, 2026, the FTC and the DOJ launched a joint public inquiry regarding potential additional guidance on collaborations among competitors. The joint inquiry seeks input on the value and potential content of guidance concerning the range of collaborations utilized to drive innovation and promote competition in the modern economy. The previous 2000 Antitrust Guidelines for Collaborations Among Competitors explained how the FTC and DOJ analyzed various antitrust issues raised by such collaborations. The 2000 Guidelines were withdrawn in December 2024. The agencies are accepting comments until April 24, 2026.

• Read the Press Release

Agency Speeches and Statements

International DAAG Kallay Delivered Speech at CSIS LeadershIP 2026 Event

On March 25, 2026, DAAG for International, Policy and Appellate Dina Kallay delivered remarks at the Center for Strategic and International Studies (CSIS) LeadershIP 2026 event. DAAG Kallay focused on the role that a robust intellectual property regime plays in promoting innovation and competition and what the DOJ has done to usher in “the Golden Age of American Innovation.” DAAG Kallay discussed the need to ensure that proper market power analysis applies to intellectual property and how to protect parties’ rights to seek judicial redress in patent cases. DAAG Kallay noted that potential antitrust liability could reduce innovators’ incentives to invest in innovation and participate in procompetitive standards-development activities, as well as deter protected petitioning activity.

• Read the Speech

Acting AAG Assefi Delivered Remarks at George Washington Law School

On March 23, 2026, in remarks at George Washington Law School, Acting AAG Omeed Assefi emphasized the DOJ’s continued focus on “America First antitrust,” which is focused on “enforcing the law against the lawbreakers, getting out of the way of law-abiding businesses, and ultimately ensuring the free market supports the American Dream.”

• Read the Speech

FTC Commissioner Meador Delivers Keynote Address at Antitrust for Digital Markets Forum

On March 23, 2026, FTC Commissioner Meador spoke at the Antitrust for Digital Markets Forum about what the speed of market change means for antitrust enforcement. Commissioner Meador acknowledged the pace of innovation can make enforcement difficult, but he reiterated that the speed of technological change can also amplify competitive harm. Commissioner Meador cited AI as an example that has the potential to transform industries but also to raise familiar competition concerns: new technologies being used to facilitate unlawful agreements, efforts to unduly restrict access to critical data inputs and compute resources, and the leveraging of a dominant position to limit entry opportunities. Commissioner Meador also emphasized that “remedies remain an essential part of the merger-enforcement toolkit,” an approach that stands in contrast to the prior administration’s skepticism toward remedies.

• Read the Speech

DOJ Acting Criminal DAAG Addresses GCR Live: Cartels 2026

On March 3, 2026, Acting DAAG of Criminal Enforcement Daniel Glad delivered keynote remarks at the Global Competition Review (GCR) Live: Cartels 2026 Conference. Acting DAAG Glad emphasized DOJ’s focus on individual accountability and that general deterrence only works if the people making those decisions understand the personal consequences, including the prospect of serving prison time. Further, Acting DAAG Glad stated that the risks and consequences of detection are no less severe when it comes to procurement collusion and cartel offenses, as seen through the work of the Procurement Collusion Strike Force, an interagency partnership including U.S. Attorneys’ Offices, the FBI, and multiple federal Inspectors General. Acting DAAG Glad touted the burgeoning success of the DOJ’s new Whistleblower Rewards Program, which creates “another lane in the leniency race” where employees, former employees, consultants, and market participants are incentivized alongside companies to report cartel behavior.

• Read the Speech

FTC Chair Ferguson Speaks at George Mason Law Review Antitrust Symposium

On February 20, 2026, FTC Chair Ferguson delivered remarks at George Mason University’s Antonin Scalia Law School Antitrust Symposium about the agency’s openness to negotiating remedies, though he cautioned of a high bar for remedies in some industries. Proponents of remedies in some industries would be required to show more evidence that a proposed divestiture will solve competitive concerns, whereas with pharmaceutical mergers, “it’s actually a much higher rate of success at divesting particular business lines or particular assets if you can find the right buyer,” he explained. Chair Ferguson detailed other aspects of his agenda, including his plan to reduce reliance on adjudication of mergers through the FTC’s administrative proceedings in favor of litigating transactions exclusively in federal court.

FTC Chair Ferguson and Commissioner Meador Deliver Remarks at Workshop on Noncompete Agreements

On January 27, 2026, the FTC held a workshop titled, Moving Forward: Protecting Workers from Anticompetitive Noncompete Agreements. Chair Ferguson defended the FTC’s departure from noncompete rulemaking efforts during the Biden administration in favor of case-by-case enforcement. During separate remarks, FTC Commissioner Mark Meador approached the topic through the lens of affordability, which has been “one of [his] biggest priorities as an FTC Commissioner since day one.” He reiterated that when pursued for the wrong reasons and directed at the wrong workers, non-competes suppress wages and thereby make everything less affordable. Like Chair Ferguson, Commissioner Meador advocated for a case-by-case analysis because “all non-compete agreements aren’t created equal.”

• Read the Workshop Transcript

FTC Commissioner Meador Delivers Keynote Address at Concurrences Tech Antitrust Conference

On January 15, 2026, FTC Commissioner Meador addressed an audience in Silicon Valley on the issue of “acqui-hires,” wherein individuals are offered payouts for purportedly abandoning their startups and, in return, join some of the most dominant firms in the tech sector. Commissioner Meador stated that from a competition enforcement perspective, this dynamic is particularly problematic because, as a procedural matter, firms may be attempting to structure such hiring arrangements to avoid formal premerger notification review under the HSR Act. These dynamics reinforce the importance of looking past formal transaction structure and asking whether the deal harms innovation and access to specialized talent, which is “critical for the startup economy and winning the AI race in the right way.”

• Read the Speech

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Newsletter 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.