Welcome to the inaugural Skadden Quarterly Antitrust Agenda, in which Skadden’s Antitrust/Competition attorneys survey the biggest stories and trends of the preceding quarter. With a focus on the U.S., the Quarterly Antitrust Agenda covers recent actions by the federal antitrust enforcers, litigation updates and developments on Capitol Hill, along with a brief look “across the pond” at major developments in Europe. Nearly two years into the second Trump administration, the regulatory landscape remains fluid, with increased state enforcement activity supplementing federal enforcement and a new approach to merger reviews and remedies by federal regulators. At the same time, algorithmic pricing claims remain active on the dockets. We hope you find this quarterly update useful. The next edition will be published in January 2027.
Story of the Quarter
Paramount Skydance/Warner Bros. Discovery Merger Closes After Clearing DOJ, State AG and International Regulatory Hurdles
Paramount Skydance’s $110 billion acquisition of Warner Bros. Discovery closed after months of regulatory scrutiny at home and abroad, with the parties resolving a state attorneys general (AGs) challenge through behavioral commitments. The deal closed on October 6, 2026, the day after U.S. Supreme Court Justice Elena Kagan denied a group of consumers’ emergency application to halt it while their Clayton Act claims are litigated. The U.S. Department of Justice (DOJ) closed its investigation in June and declined to challenge the deal, issuing a statement positing that the merger was not likely to harm competition or consumers in streaming, linear television, theatrical films or creative labor markets. A coalition of 12 state AGs sued to block the merger in July, claiming that it would harm competition in markets for wide-release theatrical film distribution, anticipated top-grossing theatrical film distribution and the licensing of basic cable television programming. That suit was resolved in September through a states-only consent decree that imposes behavioral commitments rather than structural relief. Key settlement terms include a commitment to release 30 films per year in theaters, with financial penalties for noncompliance; an independent editorial board for CBS and CNN made up solely of journalists; and a potential forced sale of secondary assets if targets are not met. Abroad, the European Commission (EC) cleared the deal on the condition that Paramount exit the United International Pictures joint venture, and the U.K. Competition and Markets Authority cleared the deal as well. Paramount also gave binding assurances to the U.K. culture secretary, including assurances related to editorial independence for Channel 5 News.
At the Agencies
DOJ and FTC Continue to Favor Negotiated Settlements and Expedited Merger Review
Federal regulators showed a continued willingness to enter into negotiated remedies, with both the DOJ and the Federal Trade Commission (FTC) entering into merger-related settlements in Q3. The DOJ, along with the state of Tennessee, announced a settlement with CRH plc allowing it to proceed with its $133.9 million acquisition of Standard Construction Group on the condition that CRH divest two hot-mix asphalt plants. The FTC similarly concluded a merger investigation into a stock purchase agreement between Beretta Holding S.A. and Sturm, Ruger & Co. Inc. with a consent order that bars Beretta from placing non-independent directors on Ruger’s board. However, in August the FTC secured a permanent injunction in a litigate case blocking Henkel AG & Co. KGaA, the manufacturer of Loctite-brand construction adhesives, from acquiring Loctite’s main competitor, Liquid Nails. The agencies have also adopted new procedures for Second Requests. The DOJ has adopted a phased approach to Second Requests, offering merging parties the potential to obtain narrower and expedited reviews in exchange for concessions to the DOJ. Meanwhile, the FTC published a final rule enumerating specific factors staff may consider when determining whether to modify a Second Request.
Federal Enforcers Prioritize Household Expenses, Particularly in Food, Housing and Health Care
Recent federal enforcement developments have concentrated on sectors that bear directly on everyday consumer expenses. In agriculture, the DOJ and a bipartisan state coalition settled egg-price coordination claims against Cal-Maine, Hickman’s and Versova, and the DOJ secured a guilty plea in its bid-rigging investigation into the bovine artificial insemination industry. Separately, the FTC entered into a settlement with Deere & Company that requires the company to give farmers and independent repair providers the same repair resources that it gives authorized dealers. The FTC’s settlement with Corteva requires the dismantling of loyalty rebate programs that the FTC alleged restricted sales of generic pesticides. In housing, the DOJ continues to resolve claims against landlords alleged to have used RealPage’s revenue management software to coordinate rents. The FTC also settled its challenge to a Zillow/Redfin agreement on the eve of trial. Finally, in health care, the FTC settled claims against CVS Caremark alleging the use of unlawful rebates, with the settlement prohibiting formulary discrimination against lower-cost drugs and requiring insulin out-of-pocket costs to be based on net rather than list prices.
Turnover at the DOJ Antitrust Division Continues, While a New Leader’s Nomination Remains Pending
At the end of June, acting Assistant Attorney General Omeed Assefi left the Antitrust Division, and the position has remained unfilled, with Associate Attorney General Stanley Woodward leading the Division in the interim. In July, President Donald Trump nominated Adam Candeub, the general counsel of the Federal Communications Commission, to be the next assistant attorney general for the Antitrust Division. Candeub’s nomination advanced out of the Senate Judiciary Committee in September and remains pending before the full Senate.
On the Docket
California Appellate Court Revives MultiPlan Litigation
The California First District Court of Appeal held that payments by health insurers for out-of-network services constitute “prices” subject to antitrust scrutiny. The plaintiff alleged that MultiPlan (now Claritev) coordinated with major insurers to suppress reimbursement rates through its “repricing” tools. The trial court dismissed the case without leave to amend, reasoning that out-of-network payments were “part and parcel of a health insurance policy” rather than prices for a standalone product. Reversing the dismissal, the appellate court held that California’s antitrust law prohibits price-fixing by both buyers and sellers, regardless of whether the payments are characterized as purchases or reimbursements. The court further noted that it would reach the same conclusion under federal antitrust law, citing a June 2025 ruling in the federal multidistrict litigation against MultiPlan in Illinois.
Court Dismisses Michigan’s Claims in Environmental Antitrust Suit
The Western District of Michigan dismissed the Michigan attorney general’s suit against BP, Shell, ExxonMobil, Chevron and the American Petroleum Institute, holding that the state lacks antitrust standing. Michigan alleged that the defendants had conspired since 1979 to delay the transition to renewable energy by abandoning renewable energy projects, using patents and litigation to impede competing technologies, and coordinating through a trade association to discourage investment in renewables. The court found that most of the alleged harms — including reduced electric vehicle supply, higher insurance premiums, declining property values and increased state costs associated with fossil fuel use — were too indirect to constitute antitrust injury in the relevant energy markets. It also rejected Michigan’s theories of reduced product variety and innovation, finding insufficient legal support, and characterized its allegations of both overcharges and suppressed competition as “double counting.” Although the court recognized energy overcharges as a cognizable antitrust injury, it found the alleged causal connection to a conspiracy dating back to 1979 too remote, given intervening market forces.
Prominent Food and Beverage Producers Accuse Sugar Industry of Price-Fixing
In late July, Pepsi, Quaker Oats, Bimbo Bakeries and Frito-Lay filed a lawsuit in Minnesota federal court against major sugar producers and refiners, alleging unlawful information exchanges and price-fixing in violation of the Sherman Act. The suit also named agricultural processor Louis Dreyfus Company, market analyst Commodity Information and its principal, Richard Wistisen, as defendants. The plaintiffs alleged that, since 2019, the refiners had used Commodity Information to exchange nonpublic pricing and supply data to maintain artificially high sugar prices. In early September, General Mills, Mars and McKee Foods filed a similar suit in Chicago federal court against American Sugar Refining and United Sugar Producers & Refiners, alleging that sugar producers used Commodity Information to exchange real-time pricing and market information. Both lawsuits follow earlier sugar price-fixing claims that remain pending in Minnesota federal court.
From the Capitol
Senate Passes College Sports Antitrust Exemption
On a 77-22 vote, the Senate passed the Protect College Sports Act in late September. The bill would exempt the NCAA, its conferences and its member schools from Sherman Act liability when enforcing rules governing athlete eligibility, compensation and transfers. It would also preempt state name, image and likeness (NIL) laws and establish a uniform five-year eligibility standard. Critics have described the measure as “the most sweeping antitrust exemption granted by Congress since the McCarran-Ferguson Act of 1945.” Opponents include labor unions, the NAACP and members of both parties. The House is not expected to consider the bill before mid-November, and its outcome there is uncertain.
Bipartisan Scrutiny Intensifies Over Data-Driven ‘Surveillance Pricing’ Practices
Lawmakers and regulators across party lines are focusing on the use of personal data in pricing decisions. Sen. Mike Lee, chairman of the Senate Judiciary antitrust subcommittee, sent letters to various companies raising antitrust concerns about their pricing, driver compensation and algorithmic practices. The inquiry comes alongside the FTC’s proposed enforcement policy statement warning that undisclosed personalized pricing may violate Section 5 of the FTC Act. Meanwhile, with Sens. Josh Hawley and Richard Blumenthal reportedly developing a legislative framework, companies that use AI and consumer data to set prices face an evolving compliance landscape. These developments are happening alongside a rise in state laws restricting algorithmic or personalized pricing. In a September 24, 2026, article in Skadden’s quarterly Insights publication, “The Rise of State Antitrust and Consumer Protection Enforcement,” Skadden attorneys examined the uptick in state enforcement and noted that several states — including Connecticut, Maryland and New Jersey — have enacted legislation that restricts or bans surveillance pricing, and that more than 30 other state legislatures are considering similar legislation.
From the States
State Attorneys General Increase Independent Antitrust Enforcement
As demonstrated by our Story of the Quarter, state AGs are expanding their antitrust and consumer protection enforcement activities and are increasingly pursuing actions independently of federal regulators. Several state AGs have created new antitrust enforcement sections or bolstered their competition divisions. States have challenged mergers that received federal clearance, including the Paramount Skydance/Warner Bros. Discovery and Nexstar/Tegna transactions. In a September keynote at the Georgetown University Law Center’s Antitrust Symposium, Colorado Attorney General Philip Weiser criticized the regulatory approach of the Trump administration and said that “states are now playing an essential role in antitrust enforcement by picking up the baton dropped by the federal government.” Additionally, states such as California, Washington and Colorado have adopted state-level premerger notification rules requiring companies that meet certain jurisdictional thresholds to submit copies of their HSR filings to state regulators. In a recent article, “The Expanding Role of State AGs in Antitrust and Consumer Protection Enforcement,” Skadden attorneys further discuss recent state AG enforcement actions.
Newsom Signs COMPETE Act, Extending California Law to Single-Firm Conduct
On September 30, 2026, California Gov. Gavin Newsom signed the COMPETE Act (AB 1776), expanding the scope of the Cartwright Act and more closely aligning California law with Section 2 of the Sherman Act. The new law empowers the state to bring monopoly and monopsony claims against a single company, rather than only against coordinated conduct among multiple firms. To establish a violation, a plaintiff must prove “substantial market power” through direct or indirect evidence. The law also instructs courts to “liberally interpret” California’s antitrust laws to “best promote free and fair competition.” However, only the California attorney general and district attorneys are authorized to bring single-firm conduct actions. Skadden attorneys recently analyzed the enacted law and its implications for companies.
Court Permits State Attorneys General to Probe White House Dealings in Live Nation Settlement
Following the DOJ’s March settlement of monopolization claims against Live Nation, which were then litigated to a successful liability verdict by a coalition of states, the state plaintiffs have called for more thorough discovery related to the DOJ settlement under the Tunney Act, characterizing the settlement agreement as vague, ambiguous and not meaningfully calculated to restore competition. In August, the court allowed limited discovery into the settlement negotiations, including communications among the DOJ, the White House and Live Nation. A hearing on remedies, where the states continue to pursue structural relief despite the DOJ settlement, is expected to be held in 2027.
Across the Pond
Booking Loses Its Appeal Against the EU’s First ‘Ecosystem’ Merger Prohibition
On September 9, 2026, the EU General Court dismissed Booking’s challenge to the European Commission’s 2023 prohibition of its proposed acquisition of Etraveli, Europe’s leading online flight booking operator. The European Commission had found that the transaction would strengthen Booking’s already dominant position in the market for online travel agencies in the hotel sector by enabling it to build a “travel ecosystem” that competitors would struggle to replicate. Although Booking argued that the EC’s decision departed from its own Guidelines on Non-Horizontal Mergers, the General Court ruled that those guidelines do not prevent the Commission from taking into account new forms of competition concerns, such as those that may arise in digital markets. Skadden attorneys have analyzed the ruling and its implications for future merger enforcement in Europe.
EU Adopts New Dominance Guidance
The European Commission has adopted final guidelines on exclusionary conduct under Article 102 of the Treaty on the Functioning of the European Union (TFEU), replacing its 2008 guidance after a three-year consultation. The guidelines bring the EU courts’ case law into a single framework. They broaden the concept of anticompetitive foreclosure, give the as-efficient competitor test a smaller role in exclusivity rebate cases, and make it easier to investigate constructive refusals to supply. Skadden attorneys have examined the new guidelines and their implications for large companies.
Law clerks Ryan Wilson and Stephanie Yang contributed to this publication.
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