Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the June 2, 2025 edition of the National Law Journal. © 2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
The early days of President Donald Trump’s second term have been marked by upheaval and unpredictability. Given this, the administration’s anti-regulatory stance, and attempts by tech executives to ingratiate themselves with the administration, some thought—and hoped—that antitrust enforcement by the Trump administration would depart from that under the Biden administration and be more relaxed. Thus far, however, the new administration has surprised some with its rhetoric and certain actions within the realm of antitrust enforcement, particularly in addressing market power held by Big Tech. It has also signaled a strong approach to merger enforcement, voicing support for the 2023 Merger Guidelines enacted under the Biden administration.
At the same time, there have been some retreats. For instance, the Trump administration has telegraphed a pullback from the Biden administration’s ban of noncompete clauses. The new administration also quickly reduced staff within the U.S. Department of Justice and the Federal Trade Commission. And, recently, it issued a directive to identify regulations that purportedly reduce competition, leaving one to wonder whether the administration plans to enforce the antitrust laws vigorously. All in all, the picture remains both unpredictable and unclear.
Perhaps somewhat surprising were Trump’s selections of Gail Slater to serve as assistant attorney general for the DOJ’s Antitrust Division and Andrew Ferguson to serve as chair of the FTC. Unlike other high-level posts for which the president seemed to have chosen people based on personal fealty, the choices of Slater and Ferguson were rather conventional. Before her appointment, Slater was then-Sen. JD Vance’s economic policy adviser, served on the White House National Economic Council in the first Trump administration, spent a decade as an antitrust lawyer at the FTC and worked at Freshfields, Fox Corp. and Roku. Ferguson worked in private practice, including at Covington & Burling. He also served in various positions in Congress, including as senior special counsel to then-Judiciary Committee Chair Chuck Grassley. Ferguson clerked for Judge Karen L. Henderson on the U.S. Court of Appeals for the D.C. Circuit and for U.S. Supreme Court Justice Clarence Thomas. In addition, he served as solicitor general of Virginia.
These appointees appear to be relatively traditional picks with deep legal experience, particularly in antitrust, and their appointments appear somewhat out of character for an administration seemingly determined to undo Biden administration policies at scale. Indeed, when announcing Slater’s nomination, Trump made clear that she was chosen to fight the “abuses” of Big Tech, and Ferguson himself criticized the “hands off” approach previous antitrust officials allegedly had toward Big Tech.
Consistent with these comments, both the DOJ and FTC have continued to push forward with some of the biggest antitrust cases in recent history. In United States v. Google LLC, No. 1:20-cv-03010 (D.D.C), the DOJ (under the first Trump administration) and 11 states asserted that Google’s monopoly control over three product markets—general search services, search advertising and general search text advertising—violated antitrust law. U.S. v. Google LLC, 747 F. Supp. 3d 1, 33 (D.D.C. 2024). In August, the court found that Google had an illegal monopoly on general search services and general search text ads. Now, the second Trump administration’s DOJ has pushed for strong remedies, including asking the court to order Google to spin off its Chrome web browser and sell its Android smartphone operating system.
In the meantime, the FTC continues to challenge Meta’s alleged “personal social networking monopoly”—see FTC v. Meta Platforms, No. 1:20-cv-03590 (D.D.C.)—even asking for an injunction requiring Meta to unwind its purchases of Instagram and WhatsApp. Ferguson said FTC lawyers are “‘raring to go’” to trial but has left the door open for a settlement.
As for what’s animating these efforts, that’s where there appears to be a divergence from the prior administration. For example, the push against Big Tech seems to emanate from allegations that Big Tech has censored conservative speech. Indeed, while discussing the dangers posed by monopolies, Ferguson decried Big Tech’s “power to censor political speech on critically important topics—the origins of COVID, the efficacy of masks and vaccines, human sexuality, and the 2020 presidential election.” Slater, at a forum she convened on “‘Big Tech censorship,’” emphasized that the danger of Big Tech monopolies is their ability to censor speech, including, notably, conservative speech, stating: “In markets that are highly concentrated … conservative viewpoints or anybody’s viewpoints can be quickly throttled or suppressed when there is market power on back of that.” For that reason, it still stands to be seen whether the Trump administration’s continued focus on Big Tech is to increase competition, settle political scores or some mix of the two—and whether, for market participants, whether it really matters, as long as the result is greater market diversity and competition.
Outside of Big Tech, the new administration’s activities have been more mixed. On the merger front, Ferguson announced that the FTC’s and DOJ’s more stringent 2023 Merger Guidelines, enacted under Biden, would remain in effect. He also said that corporate America should not expect a return to an “‘open season’ for M&A.” Indeed, early in the new administration, the DOJ sued to block the proposed acquisition of Juniper Networks by Hewlett Packard. See United States v. Hewlett Packard Enterprise, No. 3:25-cv-00951 (N.D. Cal.). At the same time, however, the DOJ and other regulators recently allowed the merger of Capital One and Discover to proceed—a merger that likely would have garnered scrutiny during the Biden administration. Given these developments, markets, and big
business, are reportedly uncertain regarding the administration’s stance on mergers.
There are also some signs of retreat in enforcement. For example, in March, the FTC asked two circuit courts to pause their reviews of the noncompete ban the FTC voted to adopt in April 2024, stating it needed to “‘reconsider its defense of the challenged rule.’” Ferguson voted against adopting the rule before he was chair, suggesting that the FTC may abandon adopting and defending it altogether. And, on May 5, the FTC and DOJ issued a joint letter directing their agency heads to create a list of regulations that “reduce competition, entrepreneurship, and innovation.” It’s too soon to know how this will affect continued antitrust enforcement, but it’s also worth watching.
Another potential indicator of a pullback in enforcement is the administration’s shedding of DOJ and FTC employees who investigate and prosecute antitrust law violations. The administration is contemplating shuttering field offices that are on the front lines of antitrust enforcement, including the DOJ’s Chicago and San Francisco field offices, potentially pulling back enforcement in two cities with large criminal antitrust enforcement case dockets. And Ferguson told Congress that the FTC cut its staff by nearly 100 people, saying, “even with these reductions, the FTC must go further. We anticipate reducing to an FTE level, or Full-Time Employee level, that will be the lowest it has been in 10 years.” It remains to be seen whether the administration can maintain a robust enforcement agenda while gutting its personnel rolls, thus leaving fewer people to do the work.
There is also the ongoing legal battle over Trump’s firing of the FTC’s two Democratic commissioners, Rebecca Slaughter and Alvaro Bedoya. These removals occurred despite the fact that FTC commissioners may only be removed for “inefficiency, neglect of duty or malfeasance in office.” Ferguson supported the dismissals.
Given these developments, it remains unclear what consumers, businesses, and the legal community should expect from our federal antitrust enforcers. While there have been some surprisingly aggressive enforcement rhetoric and activity, other actions suggest enforcement may subside or be influenced by political, as much as legal, considerations. For now, one can only wait and watch.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at alevitt@dicellolevitt.com.
Thank you to DiCello Levitt partner Alexander Barnett and associate Noah Cozad for contributing to this column.