President Trump has chosen Gail Slater to lead the U.S. Department of Justice (DOJ) Antitrust Division and elevated Commissioner Andrew Ferguson to chair the U.S. Federal Trade Commission (FTC). In this second installment of the Wilson Sonsini Antitrust and Competition practice 2025 Year in Preview four-part series, we review the DOJ and FTC litigations, investigations, and policy decisions they will inherit, focusing on matters where we think a change in direction is most likely. In an appendix, we include all publicly known agency decisions that are pending as of Inauguration Day.
Litigation
We do not expect new DOJ or FTC leadership to withdraw any of the agencies’ ongoing monopolization litigation. That said, they may find ways to pull back on some of the more novel theories of harm alleged in Biden-era cases. For example, the FTC’s monopolization lawsuit against Amazon includes a count relating to Amazon’s “Project Nessie” pricing algorithm. The FTC alleged Project Nessie was an “unfair method of competition” under Section 5 of the FTC Act—but not a violation of Section 2 of the Sherman Act. Though the district court refused to dismiss the “standalone” unfair methods of competition claim at the pleadings stage, the FTC under Chair Ferguson may decide to soft-pedal or drop the Project Nessie claim, which would signal a return to using Section 5 only in limited, well-defined circumstances beyond the scope of Section 2.
Similarly, we do not expect new DOJ or FTC leadership to pull back any ongoing merger challenges, though they may take a different strategic approach in some future cases. For example, in November 2024, the DOJ challenged UnitedHealth’s proposed acquisition of Amedisys, alleging it would reduce competition in home health and hospice care. The DOJ’s complaint alleges UnitedHealth’s proposed divestiture of home health and hospice facilities is inadequate because it fails to address all competitive overlaps and the proposed buyer is beset by financial challenges. This argument reflects the Biden-era DOJ’s deep skepticism of divestitures. New DOJ leadership is likely to be more receptive to divestiture proposals, although we expect divestitures will continue to be heavily scrutinized.
Investigations
While we expect new DOJ leadership will continue to aggressively enforce the antitrust laws against “Big Tech,” the biggest question is whether it will pull back on any of the other antitrust investigations upon taking office. One case to watch is the DOJ’s investigation into the National Association of Realtors (NAR). During the first Trump administration, the DOJ and the NAR entered into a settlement agreement and the DOJ agreed to close its investigation. But in 2021, the Biden DOJ withdrew from the settlement agreement and attempted to resume investigating the NAR, at which point the NAR sued the DOJ seeking to enforce the settlement, resulting in the DOJ investigation into the NAR being put on hold until the U.S. Supreme Court finally disposed of the NAR’s litigation on January 13, 2025. Although the first Trump administration’s approach suggests a settlement with the NAR could be revived under the second Trump administration, a lot has happened since then, including an historic verdict in the Sitzer/Burnett cases finding that the NAR agreements on commissions violated the antitrust laws, resulting in a nationwide settlement that bars mandatory offers of broker compensation and publication of offers of compensation in multiple listing services. Given the significant changes to industry practices and the likelihood of further rule changes by the NAR and Multiple Listing Services, it is likely that residential real estate practices will remain under the antitrust microscope, with continued attention from the federal antitrust agencies, industry participants and antitrust class-action lawyers.
Another area of focus for the Biden administration’s FTC leadership has been investigations targeting Robinson-Patman Act (RPA) offenses. The new FTC leadership may scale back enforcement in this area. The Biden-era FTC sought to reinvigorate the long-dormant RPA, which generally prohibits sellers from engaging in price discrimination by charging higher prices to disfavored retailers that buy similar goods. The Democratic commissioners rushed out two RPA complaints along party line votes in the closing weeks of the administration. In December 2024, the FTC sued wine and spirits distributor Southern Glazer’s for alleged price discrimination under Section 2(a) of the RPA. On the last working day of the Biden Administration, the FTC sued PepsiCo for alleged discriminatory promotions under Sections 2(d) and 2(e) of the RPA.
New FTC leadership may divert resources from these cases and could seek to withdraw them altogether once three Republican commissioners are in place. As FTC commissioner, Andrew Ferguson has indicated support for RPA enforcement generally and criticized the “bipartisan, anti-enforcement consensus [that] has prevailed among federal antitrust enforcers” and has argued treating RPA “as a nullity for decades offended the separation of powers.” However, he dissented in the Southern Glazer’s challenge, arguing the FTC’s case is unlikely to prevail and that RPA suits should only be brought in cases involving large retailers with market power. The PepsiCo dissents were even more strident—in that case the Republican commissioners expressed skepticism at bringing the case under Sections 2(d) and 2(e) of the Act and expressed in no uncertain terms that they had seen no evidentiary basis to bring the case.
Ongoing Rulemakings, Policy Statements, and Studies
The FTC’s approach to antitrust rulemaking will likely change significantly under the new administration. The Biden-era FTC embraced substantive competition rulemaking and attempted to promulgate a rule banning employee noncompete clauses as an unfair method of competition (“noncompete rule”), which the Republican Commissioners vigorously opposed. A federal district court enjoined enforcement of the noncompete rule in August 2024, finding the agency lacked competition rulemaking power. While the current FTC is appealing the injunction, we expect new leadership to let court decisions vacating the rule stand. In addition to abandoning competition rulemaking, new FTC leadership is likely to withdraw the Biden FTC’s 2022 policy statement regarding “unfair methods of competition” under Section 5 of the FTC Act, which adopted an expansive definition that gave the FTC broad discretion to determine that conduct is “unfair” without proof of market power or evidence of anticompetitive effects, and without regard to procompetitive justifications or potential efficiencies.
The Biden-era FTC also kicked off several “Section 6(b)” industry studies, investigating topics such as generative AI investments and partnerships, cloud computing, pharmacy benefit managers (PBMs), and “surveillance pricing.” These studies likely will continue under new FTC leadership. Then-Commissioner Ferguson and Commissioner Melissa Holyoak issued concurring statements supporting certain aspects of these studies, and Ferguson has praised Section 6(b) as one of the FTC’s “important duties” and indicated plans to issue a final PBM study. However, we expect the future reports coming out of these studies to illuminate areas where new technologies are spurring new forms of competition and innovation—we do not expect to see a continuation of the Biden-era FTC’s skepticism of innovation claims.
