Published on May 26, 2026
FTC workshop discusses how to incentivize merger settlement negotiations. At the FTC’s “Eleventh-Hour Antitrust Remedy Proposals and Litigating the Fix” workshop last week, FTC and DOJ Antitrust Division officials, a U.S. district court judge and several former agency officials discussed merger litigation that results in a late remedy proposal from the merging parties and how […]
FTC workshop discusses how to incentivize merger settlement negotiations. At the FTC’s “Eleventh-Hour Antitrust Remedy Proposals and Litigating the Fix” workshop last week, FTC and DOJ Antitrust Division officials, a U.S. district court judge and several former agency officials discussed merger litigation that results in a late remedy proposal from the merging parties and how that presents problems, along with potential methods to avoid a late proposal.
Late remedy proposals are efforts by merging parties to offer additional concessions to courts, typically during or right before trial, to help strengthen their case. Such proposals can put the agencies in an unfavorable position because their original case may may not have been prepared to address the late remedy.
To conserve agency resources and ensure the government doesn’t lose cases, FTC Chairman Andrew Ferguson told the audience at the workshop it’s in the agency’s interest to avoid late proposals by engaging early with the merging parties to agree on a workable remedy.
Ferguson and Commissioner Mark Meador criticized the FTC under President Joe Biden, saying the agency hadn’t properly incentivized parties to offer pre-complaint remedies and arguing the result was more “litigating the fix,” which, Ferguson said, “little by little, surrender[s] judgment about what constitutes an acceptable remedy to merging parties and to the judiciary.”
Of the 11 merger challenges litigated by the Biden FTC, four saw merging parties propose or adjust remedies during litigation. The agency lost two of those cases, in part because the court determined the updated remedies adequately resolved the underlying competition issues the agency identified in its original complaints.
Of the Trump administration FTC’s two litigated merger challenges so far, one included a remedy proposed during litigation, GTCR/Surmodics. The agency also lost that case.
The federal judge at the workshop, Charles Eskridge of the Southern District of Texas, presided over the FTC’s 2024 challenge to Tempur Sealy’s acquisition of Mattress Firm, in which he ruled in favor of the merging parties.
Eskridge said that Tempur Sealy offered a remedy after closing arguments that answered a key question he posed to the parties during the trial.
He expressed confusion over why the FTC hadn’t secured a similar remedy through pre-litigation negotiations. “It didn’t seem like there were attempts to get to a yes, to allow the deal to go forward,” Eskridge said, adding that in civil cases, “I’m always pushing the parties to settle.”
On a later panel featuring FTC Chief Trial Counsel Nathan Brenner and DOJ Antitrust Division Acting Director of Litigation Chip Nierlich, the officials recommended courts adopt case management procedures in which a late remedy proposal automatically pushes back trial dates, which would incentivize merging parties to discuss remedies in pre-litigation negotiations.
“It’s not about winning or losing,” Nierlich said. “It’s about getting to the right answer.”
States propose Ticketmaster break-up, venue divestitures, and limits on ticketing contracts as remedies after Live Nation verdict. In a court filing submitted last Thursday, attorneys for the plaintiff states in the federal monopolization trial against Live Nation Entertainment (LYV) outlined the structural and behavioral remedies they contend U.S. District Judge Arun Subramanian should impose on the company after a jury found the company liable for illegal monopolization of the live events and ticketing industry.
The principal remedy proposed is a full divestiture of Ticketmaster, the company’s ticketing subsidiary, which generated $3.1 billion in revenue last year. The attorneys general of New York, California, Colorado and other plaintiff states have signaled since the verdict that they would pursue a break-up of the 2010 merger they argue is the nexus of Live Nation’s anticompetitive conduct.
The remedies framework goes significantly further than DOJ’s proposed settlement with Live Nation, which was reached one week into trial proceedings and raised concerns of what critics contend was corrupt dealmaking between Live Nation executives and senior Justice Department officials. DOJ’s settlement would stop short of splitting off Ticketmaster but require the company to amend its ticketing platform and contract practices and terminate leases of 11 amphitheaters.
Unsatisfied with those terms, the co-plaintiff states in the lawsuit continued litigating the trial after DOJ pulled out in March. DOJ’s proposed settlement is pending approval by Subramanian under the Tunney Act.
Along with spinning off Ticketmaster, the plaintiff states proposed the divestiture of “a sufficient number” of Live Nation-owned and operated amphitheaters to dilute its monopoly power in national and local markets for large amphitheaters. They also called for the court to limit or prohibit Live Nation’s practice of tying concert bookings at some venues to the use of its concert promotion services and limiting the enforceability of Ticketmaster’s restrictive or exclusive ticketing contracts.
Notably, the proposal does not call for a full ban on exclusivity clauses in ticketing contracts or divestiture of Live Nation’s venue operation and artist management businesses from the conglomerate. It also omits limits on Live Nation’s share of national tour promotion and doesn’t retain provisions from the DOJ settlement that mandate ticketing data sharing with artists.
Advocates for artists and independent venues characterized the proposals as a pragmatic and winnable framework but called on the plaintiff states to push for additional measures to sufficiently reshape the live events industry’s anticompetitive dynamics.
“Breaking up Ticketmaster and Live Nation is a huge step, but it’s also a conservative one given the facts of the case,” Stephen Parker, executive director of the National Independent Venue Association (NIVA), told The Capitol Forum.
“There’s a reason that the attorneys generals reserve the right to submit additional remedies, and we hope and trust that they will,” Parker added.
NIVA has advocated for the court to impose a 50% threshold on Live Nation’s share of the market for tour promotion and for the divestment of the company’s artist management and venue operation businesses.
Kevin Erickson, president of the Future of Music Coalition, an advocacy group for musicians, also argues for spinning off those branches of Live Nation. In a statement to The Capitol Forum, he described the framework as placing “a genuine focus on shifting the competitive incentives in healthier directions,” and “set up the remedies trial to be as much of a slam dunk as the liability trial.”
After the plaintiffs filed the remedies proposal, attorneys for Live Nation submitted motions for a new trial and judgment as a matter of law—a plea for the judge to throw out the case on procedural grounds, a perfunctory action by defendants in large antitrust trials.
Live Nation did not respond to a request for comment.
With the plaintiffs’ remedies framework submitted, Subramanian will soon set the schedule for Tunney Act hearings and fact discovery for arguments in the remedies phase. The plaintiffs have argued for discovery to take place contemporaneously with Tunney Act proceedings, while Live Nation argues discovery must be delayed until the Tunney Act process has concluded.
Subramanian has not ruled on that question but stated that the general timeframe for proceedings will follow the schedule proposed by the defendants, which sets a 90-day period for discovery.
The court will hold a hearing on Live Nation’s pending motions on July 30.
Bill targeting federal antitrust enforcement for small business unanimously passes House committee. The Main Street Competes Act, sponsored by Reps. Hillary Scholten, D-MI, and Derek Schmidt, R-KS, cleared the House Small Business Committee last Wednesday with unanimous support.
The bill requires the FTC and DOJ Antitrust Division to conduct reports on their antitrust enforcement actions concerning small businesses and compile data on complaints of potential antitrust violations filed by small businesses.
The agencies would be required to submit the reports to the Small Business Administration (SBA), which would in turn submit analyses and legislative recommendations to Congress every two fiscal years. The bill also amends the governing statute for the SBA to include antitrust enforcement as a stated purpose of the agency.
The legislation was supported by anti-monopoly small business groups such as the Responsible Online Commerce Coalition and the newly formed Main Street Competition Coalition.
The bill would expand the SBA’s capacity to engage on antitrust issues, according to Chris Jones, the executive director of the Main Street Competition Coalition. The agency is currently limited in its ability to take action beyond funding and supporting small businesses. The legislation reorients the SBA toward competition issues and provides a framework to interact with antitrust enforcement agencies, Jones said.
Congress has a duty to rein in Supreme Court, House Judiciary is told. The American practice of court-packing, in which lawmakers and the president seek to influence the Supreme Court by passing legislation that alters the number of justices, has a history going back to 1801. However, it has not been successfully accomplished since 1869—and was last attempted in 1937.
Accusations of conservative bias at the Supreme Court have reignited the debate over adding justices, with Democrats proposing wholesale changes to the composition and authority of the nation’s highest court. Republicans, who hold a 6-3 majority on the Court, are generally opposed, arguing the Supreme Court’s independence from the legislative and executive branches is the backbone for rule of law.
Last Thursday, the House Judiciary Committee’s subcommittee on courts held a hearing, chaired by Rep. Darrell Issa, R-CA, who asserted that court-packing presents a threat to the Supreme Court’s legitimacy. At the hearing, Nikolas Bowie, a Harvard Law School professor and a witness for the minority Democrats, was singled out early by Issa for his work advocating court-packing.
Issa warned in his opening remarks that the Supreme Court was designed to be a “check against the will of the people,” and that Bowie’s testimony reflected Democrats’ misplaced desire to make the judicial branch more democratic or more attuned to public sentiment.
Bowie’s written testimony, besides clarifying precedent for increasing the size of the Supreme Court and other legislative efforts to reform the judicial branch, focused on the distinction between “judicial supremacy” and “democratic constitutionalism.” The latter mode, Bowie said, treats federal statutes as better interpretations of the Constitution than previous Supreme Court opinions.
Increasing the number of Supreme Court justices, Bowie wrote, has a clear precedent from the several historical episodes when Congress, representing the will of the people, regulated the Supreme Court to prevent it from adopting supremacy over Congress.
“Regulating the Court is not just legitimate,” Bowie wrote, “it is Congress’s responsibility.”
In Their Own Words
DOJ Antitrust Division Acting DAAG for Criminal Enforcement Daniel Glad on algorithmic collusion, May 14. “The criminal laws apply to agreements among competitors to fix prices, to allocate markets, and to rig bids… Where the evidence shows that competitors used a system—any system—to replace independent decision-making with shared competitive intelligence, we will treat that as what it is…
“Our detection capability does not diminish when conduct migrates to software. It grows. Because the paper trail does not disappear. It multiplies. Every automated bid is a structured record. Every tool that ingests competitor-data inputs is an artifact.
“Every query to a language-model-based pricing or bidding assistant leaves a log. Every change in parameters is a timestamp. When competitors coordinate through a SaaS tool — whether by design, by acquiescence, or by a vendor’s architectural choice — the digital residue is more extensive than what a yellow-pad conspiracy leaves behind, not less….
“A traditional cartel might be known to a handful of commercial executives who had strong reasons to keep quiet. An algorithmic arrangement tends to be visible to a much wider group: the engineers who built the tool, the data scientists who selected the training inputs, the product managers who approved the architecture, the account managers who sold the software to competitors, and — if they were consulted at all — the compliance professionals who reviewed it.
“Any of them can be our first call. The Whistleblower Rewards Program was not designed with AI in mind. But it was designed for exactly this kind of detection problem, and it is well-positioned for the risks that AI and algorithmic tools will create…
“A final word to the people in this room — and on the people whom you advise. The Sherman Act applies to corporations and human beings alike. And the move from human conversations to machine-assisted ones does not change who is accountable.
“The Antitrust Division charges individuals. The sentences in our cases are served by people. The list I read earlier — engineers, data scientists, product managers, account managers, compliance professionals — described the witnesses we may hear from in an algorithmic case.”
Events
May 27. “Senator Chris Murphy,” Sixth & I and Politics and Prose Bookstore event featuring Senator Chris Murphy, discussing how discussing how cultures of profit, globalism, and corruption have led the U.S. astray, with author Jonathan Capehart at the Sixth & I synagogue in Washington, DC. Register here.
May 27-28. “Democratic Attorneys General Association Milwaukee Policy Conference,” a two-day conference with Democratic state attorneys general at the Pfister Hotel in Milwaukee, Wis.
May 28. “The Quad Convenes: Priorities, Partnerships and the Indo-Pacific,” a panel discussion hosted by CISIS on May’s national security meetings between Australia, United States, Japan, and India, examining the meeting’s outcomes and its signals for maritime security, critical minerals cooperation, and the broader Indo-Pacific. Register here.
June 3-5. “Republican Attorneys General Association Summer Meeting,” a three-day conference with Republican state attorneys general at the Waldorf Astoria in Dana Point, Calif.
June 4. “AAI Annual Policy Conference,” the American Antitrust Institute’s 27th annual conference on competition policy features discussion on the intersections between journalism, competition policy, and the First Amendment. Register here.
June 4. “Data Centers, AI, and the Future of U.S. Strategic Competitiveness,” a panel hosted by CSIS’s Strategic Technologies Program on the rapid expansion of data centers and what it means for AI, energy, grid reliability, permitting, clean energy goals, national security, and U.S. competitiveness in the global race for AI leadership. Register here.
June 9. “New Frontiers in the Trade-Economic Security Nexus in Asia,” a webinar hosted by Brookings’s Center for Asia Policy Studies and the Research Institute of Economy, Trade and Industry, examining how the second Trump administration has woven economic security goals into trade deals with Japan, South Korea, Taiwan, Malaysia, and Cambodia. Register here.
Personnel
FTC tech enforcement division manager leaves. Helder Agostinho, deputy assistant director of technology enforcement in the FTC’s Bureau of Competition, is no longer listed on the Bureau’s organizational chart. Prior to becoming a DAD in TED, Agostinho had served as a staff attorney since 2015. A spokesperson for the FTC didn’t immediately respond to a request for comment.
California DOJ Antitrust Division staffs up. The Attorney General of California’s antitrust office is hiring two permanent deputy attorney generals to help “investigate and/or litigate some of the most high-profile antitrust cases: Live Nation/Ticketmaster, Nexstar/TEGNA, Warner/Paramount, Amazon, and others,” the job listing says. There are also opportunities for attorneys to serve a one-year term that could extend to two.
Items of Note
DOJ criminal price-fixing indictments include executives of Chinese state-owned enterprises. Soon after the summit between China premier Xi Jinping and U.S. President Donald Trump, the DOJ Antitrust Division announced indictments of seven executives from Chinese container manufacturing companies.
Two of the companies alleged to be involved in the conspiracy are owned in part by Chinese state-owned enterprises. In the past, antitrust claims against such companies have run into state sovereignty issues, as the defendants claimed Chinese law forced them to break U.S. antitrust law.
Unlike past cases, however, it appears the container manufacturers, who allegedly used video cameras to ensure supply restrictions across the cartel, were not acting at the behest of the Chinese Communist Party. The same day the indictments were announced, China’s State Administration for Market Regulation launched a public initiative to enhance antitrust compliance among Chinese exporters, though they made no comment on the DOJ indictments.
Keurig faces several private antitrust suits. In the last week, Keurig (KDP) has been sued three times for monopolizing the market for single-serve coffee cups, commonly known as K-Cups, with plaintiffs including the now-defunct Bed Bath and Beyond and the also defunct A&P grocery store chain.
The plaintiffs are represented by third parties who purchased the rights to the damages the now bankrupt companies incurred from Keurig’s alleged monopolization.
The lawsuits follow a notable class certification decision late last year in what may be the country’s longest-running antitrust suit, In Re Green Mountain Coffee Antitrust Litigation, which is still awaiting a summary judgment decision despite having been brought in 2014.
That case, which The Capitol Forum reported on last year, alleges Keurig monopolizes the market for single-serve coffee cups through exclusive contracts with input suppliers, horizontal agreements with competitor coffee brands, and tying arrangements with office distributors. The follow-on lawsuits filed last week make similar allegations.
In November, Judge Vernon Broderick of the Southern District of New York denied class certification for direct purchaser plaintiffs, indicating retail and wholesale outlets wouldn’t be able to join the class, and as such, would need to sue Keurig themselves to receive damages.
A spokesperson for Keurig didn’t immediately respond to a request for comment.
News
Antitrust/M&A
Sportico: U.S. Soccer, MLS Beat NASL Antitrust Appeal With $500M+ at Stake LINK
Meatingplace: Tyson Beef Antitrust Settlement gets Preliminary Approval LINK
KCRA: California Department of Justice May Need More Money to Fight Trump, Enforce Antitrust Laws, AG Says LINK
Law360: NC Judge OKs DOJ, RealPage Deal in Antitrust Suit LINK
Antitrust/M&A Opinion
Alexandros Kazimirov, for IPWatchdog: Re-Spacing Cursor in the AI Stack—The Antitrust Implications of a SpaceX-Cursor Collab LINK
Hera Hyeonseo Lee, for ProMarket: How a 2016 Accounting Rule Fueled Big Tech’s Investments in AI Startups LINK
Tech
Bloomberg: Arm Holdings to Face US Antitrust Probe Over Chip Tech LINK
The Financial Times: Big Tech Software Era Is Over, Says Top Investor James Anderson LINK
The Wall Street Journal: U.S. to Award Quantum-Computing Firms $2 Billion and Take Equity Stakes LINK
Signal Ohio: Ohio Data Center Tax Break Cost $1.4 Billion More Than Expected in 2025 LINK
Healthcare
Fierce Pharma: Takeda Slapped with $885M Verdict in Pay-For-Delay Antitrust Case LINK
KXLY: Senators Look to Block AI Healthcare from Medicare LINK
Labor
Reuters: Cargill Locks Out 1,700 Workers at US Beef Plant in Labor Dispute LINK
The New York Times: Bob Brooks, Labor Leader Backed by Top Democrats, Wins Pennsylvania House Primary LINK
