Tunney Act Tussle: State AGs launch challenge to DOJ merger settlement

HP/Juniper settlement controversy

In June 2025 DOJ announced that it had reached a proposed settlement agreement to resolve concerns that HPE's proposed acquisition of Juniper Networks, Inc.— which the DOJ alleged would combine the second- and third-largest providers of enterprise wireless networking solutions, respectively— would risk substantially lessening competition in the market for enterprise-grad WLAN solutions. In a press release, DOJ characterized the settlement as a “novel approach” to resolving a merger challenge. 

The settlement includes both structural remedies and behavioral commitments from the companies.  In addition to requiring HPE to divest its wireless networking business HPE Instant On, the proposed settlement agreement mandates that the parties hold an auction to license the source code for two of Juniper's software assets that are components in modern WLAN systems.  Notably, the licensing agreement would be non-exclusive, allowing the merged company to retain the copyright ownership and license the same software to other parties.  Another unusual feature of the settlement is that HPE has 180 days to sell the divestiture package to an as-yet undetermined buyer.  DOJ usually prefers to line up and vet the buyer in advance of allowing a transaction to close. 

Following DOJ’s announcement, the settlement agreement soon drew public scrutiny.  In an August 18, 2025 speech,¹ Roger Alford, former Principal Deputy Assistant Attorney General (DAAG) at the DOJ Antitrust Division, cited the proposed consent agreement as an example of the “pay-to-play” approach to antitrust enforcement that he says he witnessed in the Trump DOJ.  Alford said the alleged pay-to-play approach went beyond legitimate lobbying functions and undermined the rule of law.  In Alford’s opinion, certain DOJ officials “perverted justice and acted inconsistent with the rule of law” in the HPE/Juniper merger “scandal.”  Alford made it clear that he hopes the deal is blocked following the upcoming Tunney Act proceedings. 

Tunney Act Review

The Antitrust Procedures and Penalties Act, commonly referred to as the Tunney Act, requires DOJ to file any proposed merger consent order, along with a Competitive Impact Statement, with a federal district court for review of the proposed judgment.² The Tunney Act was passed during the Nixon administration following DOJ’s 1974 settlement of antitrust lawsuits challenging a series of mergers involving International Telephone & Telegraph Corporation (ITT) and several other companies.  The settlements—which included less relief than DOJ had sought in its initial complaint— triggered allegations of improper influence by ITT.

Under the Tunney Act, the court must evaluate whether the proposed consent decree is in the public interest.  Factors to be considered in the court’s review include an assessment of the decree’s competitive impact (including the duration of the relief sought and alternative remedies considered by DOJ, among other factors), and the impact of the consent decree on the general public and individuals alleging specific injury. 

Tunney Act reviews are typically a relatively perfunctory exercise. No settlement has been blocked under the Tunney Act, and the vast majority of courts have approved a consent decree based on written submissions.  However, in rare cases a court may decide to hold an evidentiary hearing including live witness testimony to gather additional information about the deal and the proposed agreement.  The Tunney Act also allows interested parties to intervene in the proceeding as a party and participate in the evidentiary hearing.   

States allege settlement was product of “undue influence” by “well-connected lobbyists”

The Motion to Intervene in the Court’s Tunney Act review of the HPE/Juniper consent agreement was led by the Attorney General of Colorado, joined by Attorneys General for California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New York, North Carolina, Oregon, Washington, Wisconsin, and the District of Columbia.³  The States cite their “strong interest in ensuring that antitrust settlements are in the public interest” in support of their motion.  In addition, the States request that the Court conduct a “thorough investigation” and hold an evidentiary hearing, citing former Antitrust Division Principal DAAG Alford’s characterization of the settlement as a “violation of the rule of law in favor of the rule of lobbyists.”⁴The States also claim that Alford and former DAAG for Civil enforcement William Rinner were fired over their opposition to the settlement agreement. 

According to the States’ Motion to Intervene, the settlement terms in the HPE/Juniper consent agreement are “facially inadequate” and “do not appear to address the harms” alleged in the complaint and pretrial brief filed by the government.  The States argue that, despite “significant evidence” that the transaction threatens to substantially lessen competition in the market for enterprise-grade WLAN solutions and less than two weeks before trial, the government “abruptly settled the case under suspicious circumstances and on bizarre terms that demand close scrutiny.”⁵  A hearing on the States’ motion is set for November 18, 2025.

On October 17, 2025 the States filed a motion asking the Court to partially lift its order staying the Tunney Act proceedings⁶ to allow the States to file a Motion for Hold Separate Order.  In its proposed Motion for Hold Separate Order, the States intend to ask the Court to “freeze [the] integration efforts [of HPE and Juniper]” in order to “maintain the status quo and protect the Tunney Act process and the ability of [the] Court to make its public interest determination effective.”⁷ The States also will ask the Court to require HPE and Juniper to “illuminate the extent of integration activity to date, and what integration efforts remain.”⁸

The Court has agreed to hear on an expedited basis the States’ motion to partially lift the stay to allow the States to file a Motion for Hold Separate Order: the Court will hear this motion on November 18 along with the States’ Motion to Intervene.⁹ In its October 21, 2025 opposition to the States’ request for an expedited hearing, HPE argues that the States have “no standing to do anything (other than move to intervene)” due to the fact that the Court “has not determined that they can participate in this case in any fashion—much less lift the Court’s stay order and move for injunctive relief.”  HPE also argues that the States’ motion to lift the stay “should be struck or held in abeyance pending the Court’s decision on the motion to intervene”, and proposes that “if the motion to intervene is granted and the nonparties are given the power to bring the motion, it can be deemed filed then.”¹⁰

States continue to play significant role in shaping the antitrust enforcement landscape in the U.S.

As we have highlighted previously, in recent years State antitrust enforcers have increasingly stepped out of the shadow of their federal counterparts to pursue their own independent antitrust enforcement agendas.  From leading the way in bringing novel antitrust lawsuits stemming from cutting-edge technology such as algorithmic pricing tools, to passing state-specific premerger notification laws requiring parties to file a concurrent state submission along with their Hart-Scott-Rodino filing, states are taking a proactive role in shaping antitrust enforcement in the United States.  State Attorneys General have also recently used antitrust enforcement as a way to champion their own political interests regardless of the party in power.  For example, the closing months of President Biden’s term saw Republican Attorneys General ramp up their focus on environmental, social and governance (ESG) initiatives as alleged antitrust violations.¹¹

The States’ efforts to challenge the HPE/Juniper settlement is another example of increasingly active State enforcement in antitrust. The States’ efforts here are also arguably partisan in nature: all of the Attorneys General that are party to the Motion to Intervene are Democrats.  This may be a signal that Democratic State Attorneys General are willing and ready to push back against the Trump administration’s increased appetite for remedies to resolve merger challenges and have embraced the skepticism to merger settlements that was a hallmark of the federal antitrust agencies during the Biden administration. 

Takeaways

Companies considering entering into merger settlements with DOJ should consider whether any state Attorney General is likely to find a reason to disagree with DOJ and pursue its own action or seek to intervene in any Tunney Act proceedings. While District Court review of merger settlements under the Tunney Act has historically been little more than a rubber stamp on settlements, the States’ Motion to Intervene in HPE/Juniper shows the potential for those proceedings to be heavily politicized and for states to seek to block a federal settlement.  While it remains to be seen what approach the District Court will take under the Tunney Act in HPE/Juniper, it is likely that states will continue to press for in-depth Tunney Act proceedings if they believe DOJ’s proposed remedies in future cases are inadequate.

Authored by Logan Breed, Ashley Howlett, Ilana Kattan, Lauren Battaglia, and Jill Ottenberg.