Antitrust

State of play.

• The FTC under Chairman Ferguson has pivoted enforcement emphasis toward consumer-facing pricing fraud — junk fees, drip pricing, subscription traps, and dark patterns — while signaling restrained posture on structural antitrust, operating with a two-commissioner Republican quorum following the 2025 dismissal of Democratic commissioners .
• Surveillance pricing has become the fastest-moving antitrust-adjacent front, with the FTC's Section 6(b) study ongoing, the House Oversight Committee issuing formal document demands to travel and platform companies, and more than 40 state bills introduced in 2026 alone targeting individualized algorithmic pricing .
• State AGs are enforcing antitrust and consumer protection law independently of federal posture, with coordinated actions spanning grocery pricing, rental junk fees, music streaming payola, PBM vertical integration, and ESG-linked credit rating practices .
• The Spirit Airlines collapse has reopened the merger-policy debate: the DOJ's 2022 block of the JetBlue acquisition — upheld by a federal court — is now being scrutinized as a case study in whether structural antitrust enforcement accelerated rather than prevented competitive harm .
• For counsel advising clients in retail, technology, financial services, or aviation, the practical baseline is a bifurcated enforcement environment: federal antitrust is restrained but state AG enforcement is active and coordinated, and the junk fee/surveillance pricing complex creates dual regulatory and class-action exposure regardless of federal posture.

Where things stand.

• FTC enforcement is concentrated on pricing transparency and consumer fraud, not structural merger review. Chairman Ferguson's testimony before the Senate Commerce Committee framed the agency's priorities as pragmatic fraud redress — hidden fees, subscription traps, dark patterns — with antitrust enforcement described as restrained . The agency's Section 13(b) relief authority remains constrained by recent court decisions, shaping the toolkit available.
• The FTC's junk fee rule is in force and generating litigation. The Rule on Unfair or Deceptive Fees, effective May 12, 2025, requires upfront total-price disclosure for live-event tickets and short-term lodging. Class actions and mass arbitrations alleging drip pricing have spiked, with exposures exceeding $10 million per case; California's SB 478 adds per-violation penalties .
• Surveillance pricing is the emerging antitrust enforcement frontier. The FTC's Section 6(b) study targets consumer-data-driven individualized pricing. Regulators are drawing a sharp line between lawful market-condition dynamic pricing and pricing tied to individual consumer data profiles. State legislative momentum is fragmenting compliance obligations across jurisdictions .
• State AGs are operating as an independent enforcement layer. Actions include the Washington AG suing Albertsons and Safeway for deceptive promotions, the DC AG targeting rental junk fees, the Louisiana AG securing a $45 million CVS settlement over PBM anticompetitive pricing, and 23 Republican AGs challenging credit rating agencies on ESG-linked antitrust grounds .
• Connecticut's AG has applied existing antitrust and consumer protection statutes directly to AI conduct, including algorithmic price-fixing and deceptive AI claims, without waiting for AI-specific legislation — a template other state AGs are positioned to follow .
• The OpenAI-Musk dispute has introduced state AG antitrust jurisdiction into AI competition. OpenAI has urged California and Delaware AGs to investigate Elon Musk for alleged anticompetitive conduct in the AI sector, framing the dispute as a state-level antitrust matter ahead of litigation .
• Memory chip supply concentration is attracting antitrust attention. Samsung, SK Hynix, and a small cluster of Taiwanese manufacturers dominate high-bandwidth memory supply, with operating margins exceeding 65% on AI data center products. Supply constraints are projected to persist through 2027, and regulators are examining whether bottleneck exploitation rather than genuine scarcity is driving margins .
• The Spirit Airlines collapse is a live case study in merger-block consequences. Spirit's liquidation following the DOJ's successful block of its JetBlue merger has eliminated 200 routes and thousands of jobs, prompting industry debate about whether the enforcement action produced the competitive harm it sought to prevent .

Latest developments.

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• FTC Chairman Ferguson testified before the Senate Commerce Committee on agency priorities: junk fees, subscription traps, and dark patterns as the enforcement core; restrained antitrust posture signaled .
• House Oversight Committee launched a formal investigation into surveillance pricing, sending document demands to travel and platform companies on revenue management algorithms and consumer data practices .
• More than 40 state bills introduced in 2026 targeting algorithmic surveillance pricing, including California AB 2564 (outright prohibition, $12,500 per violation) and the federal One Fair Price Act .
• Washington AG sued Albertsons and Safeway for deceptive BOGO promotions; DC AG sued Mid-America Apartment Communities for rental junk fees; Louisiana AG secured $45 million CVS settlement over PBM anticompetitive pricing; 23 Republican AGs challenged Fitch, Moody's, and S&P Global on ESG-linked antitrust grounds .
• Connecticut AG Tong issued advisory applying state antitrust and consumer protection law to AI conduct, including algorithmic price-fixing .
• OpenAI urged California and Delaware AGs to investigate Musk for alleged anticompetitive conduct in the AI sector .
• Spirit Airlines ceased all operations following failed bailout negotiations; the DOJ's 2022 JetBlue merger block is now a focal point in post-mortem analysis of the airline's collapse .
• Memory chip makers posting record margins on AI infrastructure demand; antitrust scrutiny of supply concentration emerging .
• DOJ indictment of three individuals tied to Super Micro for alleged $2.5 billion diversion of AI servers to China; SEC and BDO reviews ongoing; investor class actions filed .
• FTC documented $2.1 billion in social media scam losses in 2025, attributing the surge to platform targeting capabilities and personal data exploitation .

Active questions and open splits.

• Where does lawful dynamic pricing end and unlawful surveillance pricing begin? The FTC and state legislators are drawing a line between market-condition pricing and consumer-data-driven individualized pricing, but no enforcement action has yet defined the boundary with precision — leaving companies using algorithmic pricing tools in a compliance gray zone .
• Does the Spirit Airlines collapse vindicate or indict the DOJ's merger enforcement posture? The airline's liquidation following the blocked JetBlue deal has produced a live policy debate: whether blocking consolidation in a structurally fragile industry produces competitive harm rather than competitive benefit — a question that will inform how the current DOJ approaches airline and other concentrated-industry mergers .
• Can state AGs enforce antitrust law against AI conduct under existing statutes? Connecticut's advisory explicitly invokes state antitrust law against algorithmic price-fixing and deceptive AI claims. Whether other AGs follow, and whether federal preemption arguments hold, is unresolved .
• Is memory chip market concentration an antitrust problem or a supply-scarcity response? The distinction between exploiting a bottleneck and responding to genuine demand is the core question regulators will face if they pursue Samsung, SK Hynix, or the Taiwanese memory cluster — and no enforcement action has yet been filed .
• Do mass arbitration filings defeat junk fee class-action waivers? Plaintiffs' firms are routing coordinated claims through arbitration to bypass class-action waivers; whether courts will treat coordinated mass arbitrations as functionally equivalent to class actions — and impose class-action procedural constraints — is actively litigated .
• What is the scope of state AG jurisdiction over AI competition disputes? OpenAI's invocation of California and Delaware AG authority against Musk tests whether state antitrust enforcement can reach conduct in the AI sector that federal enforcers have not targeted — and whether corporate governance law (Delaware) can be weaponized as an antitrust-adjacent tool .
• How will the FTC's restrained antitrust posture interact with active state AG enforcement? The gap between federal restraint and state AG activism creates forum-selection and preemption questions for companies facing multi-front exposure — particularly in sectors like grocery, pharma, and technology where both layers are simultaneously active .

What to watch.

• Whether the FTC issues formal disclosure requirements or enforcement guidance on surveillance pricing following the Section 6(b) study — that guidance will define the compliance standard for algorithmic pricing across retail, hospitality, and platform sectors.
• Whether California AB 2564 or any of the 40-plus state surveillance pricing bills are enacted — the first enacted statute will set the template and trigger multi-state compliance obligations.
• Whether any state AG (California, Delaware, or otherwise) opens a formal investigation following OpenAI's Musk referral — the first AG action would establish whether state antitrust jurisdiction over AI competition disputes is viable.
• How courts handle the first wave of mass arbitration filings under the FTC junk fee rule — particularly whether coordinated arbitration campaigns survive motions to compel class-action procedures.
• Whether the DOJ's posture on airline or other concentrated-industry mergers shifts in response to the Spirit Airlines collapse narrative — any public statement from DOJ leadership on the case would be a leading indicator.
• Whether antitrust regulators in the US or EU open a formal inquiry into memory chip supply concentration as AI infrastructure demand continues to drive record margins through 2027.