Published on Jul 24, 2025
After DOJ’s suit to block HPE’s (HPE) $14 billion acquisition of Juniper Networks (JNPR) culminated in a highly unusual settlement, the consent decree faces one last barrier to becoming final: Tunney Act review by U.S. District Judge Casey Pitts.
That’s typically a rubber stamp. But given the settlement’s atypical substance and process, plus third parties who may be motivated to intervene and a judge who may be inclined to approach the review skeptically, what’s normally a quick judicial signoff could turn into a fraught process with wide-reaching implications.
The proposed settlement divided DOJ internally, sources familiar with the matter said. Assistant Attorney General Gail Slater, the antitrust division’s chief, opposed settling, but senior DOJ officials, including Acting Associate Attorney General Chad Mizelle, overruled her, the sources said. In arguing against the settlement, Slater raised concerns about the Tunney Act process and the disclosures it would require about communications between the companies’ representatives and the administration, the sources said.
A CBS News report last week that included some of these details referred to internal administration discussions of “whether to push out some [antitrust division] staff.” Sources said that a fight continues over the potential ouster of two of Slater’s top deputies, Principal Deputy Assistant Attorney General Roger Alford and Deputy Assistant Attorney General Bill Rinner. Both of their names and biographies had been removed this morning from the website listing the division’s leadership but have since been put back on. A DOJ spokesperson didn’t immediately respond to a request for comment.
The Antitrust Procedures and Penalty Act, also known as the Tunney Act, requires that a federal court find DOJ settlements “in the public interest” before making them final.
The act, which became law in 1974, grew out of concerns that the Nixon administration had improperly influenced DOJ antitrust settlements, including a series of 1971 consents with International Telephone & Telegraph Corporation (ITT). Subsequent reporting revealed that President Nixon had instructed his deputy attorney general to “stay the hell out” of the “ITT thing,” seemingly in response to ITT’s agreement to donate $400,000 to the 1972 Republican National Convention.
Those revelations led to widespread furor and congressional interest in preventing such scenarios in the future. “[T]he policy objective was to ensure that lobbying contacts did not influence the law enforce[ment] function of the Antitrust Division of the Department of Justice,” former Senator John Tunney, the legislation’s primary champion, said in a 2002 affidavit.
Under the Tunney Act, which Congress amended in 2004, courts determining whether a consent decree is in the public interest must consider: (1) “the competitive impact of such judgment,” and (2) “the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury.”
Despite this directive, courts reviewing proposed consent decrees under the law typically wave them through quickly. The only example of a district court pushing back on a DOJ settlement—a 1995 decision rejecting the consent settling Sherman Act charges against Microsoft (MSFT)—was subsequently overturned by the D.C. Circuit Court.
No court has ever rejected a merger settlement under the Tunney Act. In fact, there’s only one recent example of a court even holding a live hearing: U.S. District Judge Richard Leon in 2019 probed a DOJ consent decree settling the case against CVS’s (CVS) acquisition of Aetna through a two-day hearing that included six live witnesses.
If past is prologue, Pitts will finalize the settlement as soon as he’s able. But given the substantive and procedural smoke around the HPE/Juniper matter, there’s a meaningful chance that this time will be different.
Substantive questions. First, there’s the substance. DOJ’s January 30 lawsuit, brought by the Trump administration’s acting antitrust division head Omeed Assefi, alleged the merger would harm competition in the market for “enterprise-grade WLAN solutions,” in which HPE’s Aruba and Juniper’s Mist product lines were close head-to-head competitors.
But after an attorney for the defendants filed a settlement around midnight on June 28—just 12 days before trial was set to begin—DOJ dropped its case, calling the proposed consent decree a “novel approach.”
The settlement is indeed novel, with its structural centerpiece HPE’s commitment to divest its Instant On business. But Instant On is targeted at small and medium-sized businesses (SMB) and isn’t an option for the large, “enterprise-grade WLAN solutions” customers DOJ’s complaint alleged the merger would harm, three customers and an industry analyst told The Capitol Forum.
In fact, in a post-settlement victory lap that’s almost certain to find its way into the Tunney Act record, HPE CEO Antonio Neri made a similar argument. Instant On is “a distinct offering separate from the traditional HPE Aruba platform and Aruba Central. It was specifically designed to serve the small business segment, particularly the ‘S’ in SMB and represents a small portion of our overall business,” Neri said on a July 10 call with investors.
Given this disconnect, DOJ’s proposed consent decree (which also includes an obligation to license certain Mist AI source code) is difficult to square with the allegations in the complaint, industry participants have said.
“It’s ridiculous. I have no idea what the DOJ was thinking—Instant On had nothing to do with the enterprise business,” one industry executive familiar with the merging parties’ WLAN products said in an interview.
“It makes zero sense,” the executive added. “Everybody that knows anything about the industry is scratching their heads. The whole terms of the settlement were absurd.”
DOJ said in a competitive impact statement filed with the court that “the divestiture of assets, license, and other relief described in the proposed Final Judgment will preserve competition for the development and sale of enterprise-grade WLAN solutions in the United States.” That position, however, may have little third-party support.
The public will have the opportunity to make their views heard: DOJ published the proposed final judgment in the federal register on July 10, which kicked off a 60-day period for public comment.
Those comment periods are usually sleepy affairs. But given the deal’s high profile, and the remedy’s questionable adequacy, that docket could become littered with critical comments.
Once the public comment period concludes, DOJ considers them, files its responses with the court and moves for the entry of final judgment. That typically occurs a few months after the comment period closes.
Only after DOJ moves for the entry of final judgment would the court consider holding an evidentiary hearing. In other words, if Pitts does hold a Tunney Act hearing, it’d be unlikely to occur until next year—and if the CVS/Aetna timeline is any guide, not until Q2 2026.
Importantly, the government has a low bar to clear in Tunney Act reviews. As one district court noted in 2016, DOJ “need not prove that the settlements will perfectly remedy the alleged antitrust harms; it need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.”
And district courts have been explicitly deferential to DOJ’s views—as another district judge noted in a 2003 Tunney Act decision, “[a] district court must accord due respect to the government’s prediction as to the effect of proposed remedies, its perception of the market structure, and its view of the nature of the case.”
Even providing for some degree of judicial deference, however, if preliminary industry feedback is any indication, whether the settlement clears even the low bar of proving “reasonably adequate” to address the harms alleged in the complaint is an open question.
Process questions. Substance aside, there’s the question of process, and in particular whether the procedural smoke around the lead-up to the settlement—including Mizelle’s move to overrule Slater—could inform Pitts’ approach to the Tunney Act proceeding.
Mizelle’s close involvement in the matter is highly unusual—as is the fact that no DOJ trial attorneys signed the resulting consent decree papers. It also raises questions that won’t be quieted by HPE’s July 7 disclosure that it retained MAGA-aligned antitrust thought leader Mike Davis to advocate for the deal.
In addition to Davis, HPE, in working to short-circuit the antitrust division’s case, hired multiple lobbyists close to the White House, including Arthur Schwartz, a close confidante of Vice President JD Vance.
Slater in a meeting with HPE and Juniper officials told the companies to work directly with the antitrust division in advocating for the transaction rather than attempting to influence the process through consultants like Davis and Schwartz, sources said.
Section 16(g) of the Tunney Act requires parties to disclose to the court “all written and oral communications by, or on [their] behalf…with any officer or employee of the United States concerning or relevant to” the consent decree.
HPE’s and Juniper’s July 7 16(g) filing identifies Davis, as well as Will Levi, a partner at Sidley Austin who was chief of staff to the attorney general during Trump’s first term. But the disclosure doesn’t mention Schwartz, or any other outside lobbyists or consultants. That indicates that HPE is reading its obligation to identify communications “relevant to” the settlement fairly narrowly, and may in turn lead to third party or court questions about the adequacy of the company’s disclosures.
That said, courts haven’t meaningfully weighed in on the question of when 16(g) disclosures are adequate, and the merging parties here wouldn’t be the first to view their obligations narrowly. Microsoft in a 2002 Tunney Act hearing argued that it was required to disclose only communications that involved a “term” in the final settlement agreement.
“HPE is confident it has fully complied with its obligations under the Tunney Act,” an HPE spokesperson said. Davis, Schwartz and Levi declined to comment. Spokespeople for DOJ and Juniper Networks didn’t respond to a request for comment.
HPE in the 16(g) filing also said that its communications with DOJ related to both settlement terms and “national security interests favoring consensual resolution of the action.” Although courts may have limited latitude to consider non-competition factors in their Tunney Act analysis, that disclosure raises the prospect that DOJ could argue the consent decree is “in the public interest” for reasons beyond protecting competition in the enterprise-grade WLAN market.
Ultimately, however, a Tunney Act review focuses on a consent’s competitive impact. And although process isn’t necessarily part of the analysis, HPE did hire consultants close to the White House to lobby for their deal—and Mizelle subsequently overruled the antitrust division’s chief. That may lead Pitts to ask whether the settlement is consistent with a law Congress passed “to ensure that lobbying contacts did not influence the law enforce[ment] function of the Antitrust Division of the Department of Justice.”
Court discretion. Courts have substantial power to gather evidence relevant to whether a settlement is “in the public interest” under the Tunney Act, including to (1) “take testimony of Government officials or experts,” (2) “appoint a special master and such outside consultants or expert witnesses as the court may deem appropriate,” (3) “authorize full or limited participation in proceedings before the court by interested persons,” and (4) “take such other action in the public interest as the court may deem appropriate.”
Put differently, although courts rarely use it, the law grants them incredibly broad discretion to conduct hearings. Unhelpfully for DOJ, Pitts, a Biden appointee who until his confirmation in 2023 was a partner at Altshuler Berzon, a public interest law firm, isn’t an administration-friendly draw. And although the circuit’s Democratic lean has narrowed in recent years, the fact that an appeal of a Pitts rejection of the settlement would go to the Ninth Circuit—rather than the D.C. Circuit, as is typical in Tunney Act proceedings—is also an unhelpful dynamic.
To be sure, a court attempt to dig into the process through which the government settled the case would almost certainly face substantial pushback from DOJ, which would presumably take the position that the public interest inquiry is limited entirely to substantive factors. Any court move to solicit testimony on settlement process could also run into agency claims of, for example, deliberative process privilege (or, if national security becomes an issue, even state secrets privilege).
Nonetheless, the legislative intent of the Tunney Act indicates that the substantive and process questions are intertwined. As Tunney said in remarks on the Senate floor, “If I could sum up the true meaning and purpose of this act, I would cite the crisp and clear words of Justice Louis Brandeis: ‘Sunlight is the best of disinfectants.’ It is more sunlight that we are seeking to shed on the methods and manner by which we settle complex and costly antitrust suits through the consent decree process” (emphasis added).
Given its drafters’ policy objectives—plus the text of the statue and the legislative history—it’s seemingly within the court’s power to consider, and perhaps even seek testimony on, process questions. The high likelihood that public comments will express concerns around the settlement process here may further increase the odds that Pitts takes the unusual step of considering the “methods and manner” question.
But even if Pitts opts against evaluating process, substantive factors alone indicate that the HPE/Juniper settlement is set to face an unusually impactful Tunney Act review—and one that, if it goes awry, could lead to meaningful hit to the credibility of the antitrust division—and the Justice Department more broadly—with the courts.
Such an outcome could also have serious follow-on effects—especially in a scenario where top DOJ officials in coming months seeks to settle other open antitrust division conduct lawsuits—for example, pending litigation against Google (GOOG), Apple (AAPL), Visa (V) or Live Nation (LYV).
