Published on Mar 24, 2026
Preview of HPE/Juniper hearing. U.S. District Judge P. Casey Pitts of the Northern District of California will hear arguments today on whether to approve under the Tunney Act DOJ’s motion to finalize its settlement in the Hewlett Packard Enterprise/Juniper Networks case.
At 1:00 p.m. ET, the hearing will start. Watch the livestream here.
On March 13 a group of state AGs filed their motion to oppose the final settlement, drawing on evidence around the strength of the original case and the irregularity in the settlement having been negotiated between company lobbyists and DOJ officials above the Antitrust Division.
Bill Baer, a former head of DOJ’s Antitrust Division, said in a declaration accompanying the states’ filing that it was unprecedented for officials above the division to intervene in antitrust matters.
“I am aware that on occasion parties dissatisfied with my decision to litigate or to not accept a settlement did seek meetings with DOJ Leadership,” Baer wrote. “Those requests, however infrequent, were routinely denied and the parties instructed to deal directly with me and my team.”
The intervening states have argued that well-connected lobbyists in Trump World representing Hewlett Packard Enterprise (HPE) went to senior DOJ officials to overrule leadership at the Antitrust Division.
In their March 19 reply to the states’ opposition, HPE argued that asking senior officials to intervene was a reasonable course of action.
Pitts, in an order dated March 13, denied the state intervenors’ request to convert the settlement approval hearing into an evidentiary hearing, writing that the motion to finalize the settlement can likely be decided without one, though he instructed the states to prepare their economic witness Carl Shapiro in case he changes his mind.
As such, a clear resolution to Tunney Act proceedings at the hearing today is possible. Pitts has already reviewed testimony from depositions of former DOJ Deputy Assistant Attorney General Roger Alford, lobbyist Mike Davis, and Chad Mizelle, former chief of staff for Attorney General Pam Bondi.
If Pitts sides with the states and rejects the settlement, not only could the merging parties and DOJ have to come up with a new settlement, but it could also signal that future DOJ merger settlements could be subject to stricter judicial review.
The state attorneys general involved in the Tunney Act proceedings include California, New York, and Massachusetts.
In response to a request for comment, HPE spokesperson Adam Bauer pointed to an argument in its recent court filing that there is no DOJ rule against high-ranking officials overruling the Antitrust Division.
Coalition of progressive state attorneys general asks companies to cooperate with merger investigations. The Progressive State Leaders Committee, a coalition of Democratic state attorneys general, served notice last week to potential dealmakers warning that state attorneys general will investigate and sue to block illegal mergers that federal enforcers fail to address.
“Companies seeking to merge should be proactive and provide all appropriate information to state attorneys general,” senior advisor to the coalition Rohit Chopra wrote. Chopra is the former head of the Consumer Financial Protection Bureau.
In the notice, Chopra argued state antitrust enforcers should intervene when the Department of Justice approves weak or potentially harmful and corrupt merger settlements.
Indeed, just last week, California Attorney General Rob Bonta and state attorneys general representing New York, Colorado, Illinois, Oregon, North Carolina, Connecticut, and Virginia sued to block the Nexstar/Tegna deal that just hours later was approved by DOJ and the FCC.
Elsewhere, 33 state attorneys general are now litigating a monopolization lawsuit against Live Nation after DOJ settled its case shortly after trial began. California Attorney General Rob Bonta has also said California is conducting a vigorous review of the Paramount/Warner Bros Discovery merger.
“Given the lax enforcement at the federal level, state attorneys general can closely coordinate with each other to detect and deter illegal mergers that harm the public,” Chopra wrote.
Past comments from fertilizer executives may shed light on supply constraints alongside pricing spikes. Fertilizer companies are in the spotlight again for increasing prices amid the Iran war and the resulting global trade crisis. While fertilizer utilized in the U.S. does not primarily come from the Persian Gulf, rising concern from farmers over post-Iran fertilizer price increases indicated potential structural issues with the U.S. fertilizer market.
American farmers were sounding the alarm about untenable fertilizer prices before the Iran war. Today, many farmers can’t afford fertilizer because the crisis has further increased prices. Farmer advocates argue high fertilizer prices result from years of consolidation, incentivizing the few big companies remaining to keep supply tight.
These incentives are typical of oligopolies; the question many farmers have is whether antitrust action is suitable to address the market problem. DOJ’s Antitrust Division is currently investigating the largest fertilizer companies for alleged price-fixing, and two class action lawsuits have already been filed against market leaders Nutrien (NTR), Mosaic (MOS), CF Industries (CF), Koch Fertilizer, and Yara International. The lawsuits specifically allege price fixing occurred between 2021 and 2022, when prices more than doubled across all fertilizer types.
Fertilizer can be delineated into three main types: nitrogen, phosphate, and potash. While these types are mined separately, and provide different advantages to crop growers, some common forms of fertilizer combine the types together. Nitrogen-based fertilizer such as urea, which requires natural gas, has seen its prices increase the most.
Nutrien and Mosaic have duopoly level market power in phosphate and potash fertilizer production, while CF Industries leads the U.S. market for nitrogen fertilizer. Their power doesn’t stem from simply owning mines (or plants in the case of nitrogen); they also own retail chains, port terminals, control gas pipelines, and with regard to Nutrien and Mosaic, own a joint export group for potash called Canpotex.
In 2022, The Capitol Forum looked at November 2021 comments from Nutrien Executive Vice President Mark Thompson as potential examples of coordination, where cartel members signal future conduct to each other through public earnings calls.
Thompson said that history has proven the industry “can overbuild itself,” and that “those lessons from the past have been heeded.”
Particularly with regard to potash and phosphate, new factories have not come online to take advantage of the higher price levels since 2021. In 2022, Nutrien said it would increase production from 14 million tons of potash to 18 million through utilizing their available mine capacity, but dropped those plans a year later.
For potash, the main competitors to Nutrien and Mosiac’s joint venture on a global scale are Belarus and Russia. In February 2022, when those countries were facing sanctions, and domestic fertilizer prices were high, Nutrien CEO Ken Seitz said his company wasn’t going to expand production in the interim.
“We’ve talked about our 18 million tons of existing capacity and the ability to bring on additional brownfields when the market is calling for it,” Seitz said. “So, you know, we’re looking at the Belarusian situation, and we would need to see some prolonged challenges in that part of the world in order to make those investments.”
Diana Moss, director of competition policy for the Progressive Policy Institute, who studied fertilizer markets for a 2014 paper on the global fertilizer oligopoly, said in an interview that Seitz’s approach reveals how oligopolies incorporate their competitors’ output in pricing decisions. “The question is when you start crossing the line (into explicit agreement).”
In 2023, Mosaic CEO James O’Rourke told investors their potash buyers, which includes U.S. farmers, absorb their price increases when supplies are tight.
“So, in a sense, we’re a price-taker,” O’Rourke said. “So, if the market is tight and supply and demand drive prices up, [buyers] will absorb the expenses. If the supply and demand is not (tight), then probably it will come to the suppliers. But we think the market is tight. So, we think that probably gets absorbed by the end user.”
O’Rourke’s quote shows Mosaic’s motives to keep supply tight, Moss said.
“A lot of firms do that in public statements,” Moss said. “You’re not admitting you’re colluding with other market participants, but you’re signaling that keeping capacity tight will give higher prices.”
“Who decides when supply is tight?” said Basel Musharbash, an antitrust lawyer for Antimonopoly Counsel, regarding O’Rourke’s comment. He said the only reason fertilizer producers can pass on costs in full is because there isn’t competition to undercut their prices.
Musharbash pointed to a swap deal between CF Industries and Mosaic for nitrogen and phosphate fertilizer production. CF Industries sold its phosphate business to Mosaic in 2014. In return, CF Industries signed an agreement with Mosaic to provide them with nitrogen. “To me that’s pretty on the nose market-splitting,” he said.
Further, Musharbash said, trade court proceedings in 2021 indicate CF Industries is seen within the market as the price leader for nitrogen-based fertilizer. While Mosaic and Nutrien appear to set prices for potash and phosphate-based fertilizer, Musharbash said, CF Industries appear to set prices for nitrogen-based fertilizer.
Laura Canosa, a spokesperson for Yara International, declined to comment.
Spokespeople for CF Industries, Nutrien, Mosaic, and Koch Fertilizer didn’t immediately respond to requests for comment.
In Their Own Words
Acting Assistant Attorney General at DOJ Antitrust Division Omeed Assefi at Bull Moose Project’s America First Antitrust Event, March 19. “It’s the same vision that I think Gail set out in 2025. which is to be laser-focused on kitchen table issues, on making sure that the American worker, the American consumer and American businesses are able to sort of reap the rewards of the free market system. So, for businesses, it’s about opening up competition and making sure the marketplace isn’t tilted against them. That we can open up markets to make sure that there is fierce competition, because that fierce competition will have the trickle-down effect to the people and to the economy.
“The issue area that people sleep on… is the procurement collusion strike force and that sort of work we do on the criminal side. I mean that you know, Gail used to call it DOGE before DOGE, which I think is totally accurate… they enlisted the antitrust division to focus on procurement fraud at the state, local and federal level…
“I will say there’s time sort of incomplete analysis, or, you know, reality-free assessments that I don’t think really take into account that we’re law enforcement professionals, right? Like we’re not here to litigate in the press. We’re not here to get into a public back-and-forth. People can attack me. It’s totally fine…
“I see sometimes where these comments about the age of enforcement, and it, at the federal level is dead… It’s funny to hear that the age of federal enforcement is dead when the criminal program alone in FY 2025 increased the days of incarceration for antitrust defendants by 1200% compared to fiscal year 2024…
“I heard a comment the other day that, well, the purpose of trial isn’t just to seek, you know, the purpose of trial, isn’t some of it, to have an airing of grievances in the courtroom, and I said, so you’re describing basically judicial Festivus. So it’s just an area of grievances. I’ve been at the department for nine years. The goal is to seek and get justice, not to have an area of grievances…
“But you know, me and my staff are going to meet and tell you what our issues are, and it’s incumbent on the party to meet us where we’re at. And you know, there’s times where I’ll have to say, like I’m convinced by this, and you need to know that. But we’ll meet with anyone. We’ll meet with anyone in the conference room. We’ll meet with our teams, and I just expect good faith arguments. And what I mean by that is I expect arguments against interest. I expect people to come in.”
Events
March 23. “The Washington Antitrust & Digital Markets Forum,” a half-day antitrust event hosted by MLex and George Washington University’s Competition Law Center, featuring FTC Commission Mark Meador and Acting Assistant Attorney General at the DOJ Antitrust Division Omeed Assefi. Register here.
March 25-27. “ABA Antitrust Spring Meeting 2026,” the 74th annual spring gathering of antitrust, consumer protection, and data privacy enforcers and professionals at the Marriot Marquis in Washington, D.C. Register here.
March 26. “FSG Global and Semafor: Antitrust in Action,” a half-day program co-featuring antitrust enforcers from the Trump Administration, including FTC Chairman Andrew Ferguson and Acting Assistant Attorney General at the DOJ Antitrust Division, Omeed Assefi. Register here.
March 27. “The New Geoeconomics of Competition Law,” a conference hosted by the University College London Center of Law and Georgetown Law School in Washington D.C. on how changes in competition law away from the consumer welfare standard adapt to an increasingly fragmented global trade market. Register here.
April 11-12. “Stigler Center’s 2025 Antitrust and Competition Conference: Economic Concentration and the Marketplace of Ideas,” a two-day conference on whether increased market concentration negatively impacts the marketplace of ideas in academia, news, and information production and diffusion. Register here.
April 20-21. “International Conference on Antitrust and Competition Law,” a two-day conference hosted by the International Research Conference, which brings together academics who have recently conducted research on competition law. Register here.
Personnel
Gail Slater joins American Compass. The former head of the DOJ Antitrust Division is now the competition and technology policy chair at American Compass, a conservative think tank.
Items of Note
Senate and House Democrats introduce bill to open energy meter data for consumers. On February 27, Sen. Peter Welch (D-VT) announced the E-Access Act of 2026 alongside Sen. Chris Van Hollen (D-MD) and Reps. Kevin Mullin (D-CA) and Mike Levin (D-CA).
The bill seeks to provide smart-meter data to consumers and third parties. Data on the meters is crucial to demand-response programs where households or other electricity consumers lower their usage during peak hours in exchange for payment from the grid.
Utilities with a monopoly over electricity and gas delivery to a household also control the data needed for demand response programs. They often provide demand response programs themselves, but advocates for energy data accessibility argue that energy consumers should be able to choose between competing programs.
Without fair terms for access to a consumer’s data, the advocates say, potential competitors to the utilities’ demand-response programs are at a substantial disadvantage.
By directing the Department of Energy and the Federal Energy Regulatory Commission to develop non-discrimination guidelines for the provision of the data, the bill tries to ensure utilities can’t block potential third party competitors.
News
Antitrust/M&A
Associated Press: Live Nation CEO Michael Rapino, Defending His Company, Takes Star Role at Antitrust Trial LINK
The Wall Street Journal: Nexstar Says Tegna Merger Has Closed With Federal Approval LINK
Global Competition Review: Ferguson: Antitrust Focus May Go Too Far LINK
Reuters: DOJ Antitrust Head Says Paramount–Warner Bros Deal Review is Not Political LINK
Antitrust/M&A Opinion
Victoria Song, for The Verge: Lina Khan Was Right About the Metaverse LINK
Clement Mulock, for ProMarket: Meta’s Winning Market Definition in Its Monopoly Case Relied on a Flawed Empirical Assumption LINK
Tech
CNBC: Alibaba Workforce Shrinks 34% in 2025 as Chinese Tech Giant Doubles Down on AI LINK
CNN: Co-Founder of Tech Company Charged with Diverting $2.5 Billion in Nvidia AI Chips to China in Violation of Export Laws LINK
Bloomberg: Nvidia’s Jensen Huang Urges AI Leaders to Avoid Fearmongering LINK
Healthcare
MobiHealthNews: GE HealthCare Finalizes Acquisition of Intelerad for $2.3B LINK
Modern Healthcare: Inside UHS’ Decision to Acquire Talkspace LINK
Reuters: Prestige Consumer to Buy Breathe Right Brand in $1.05 Billion Deal LINK
Labor
FierceHealthcare: 10K Corewell Health Nurses Vote to Authorize Labor Strike LINK
The New York Times: To Address Farm Labor Shortage, Trump Administration Turns to Migrant Workers LINK
