Our leadership
Learn more
Authors
Authors
On October 29, 2026, the U.S. Department of Justice (DOJ) issued a press release describing how its Antitrust Division works with state attorneys general (AGs) on mergers with predominantly intrastate effects. DOJ intends to focus its resources on transactions with regional or national implications, and it is prepared to let state enforcers lead when a deal’s competitive effects are local. The same day, DOJ issued a closing statement showing the policy in practice: it had referred two asphalt merger investigations to the New York, Pennsylvania and New Jersey AGs, and each state then reached its own settlement with the merging parties.
DOJ’s message
Associate Attorney General Stanley E. Woodward, Jr. explained that “[p]rinciples of federalism guide that the Justice Department use its resources to investigate mergers with regional or national implications.” DOJ will still sometimes investigate local transactions, “including when there is an antitrust issue of national significance.” For mergers of national importance, DOJ “will generally form its own views of the appropriate resolution of an investigation, although it may partner with state enforcers who offer to contribute distinctively to the investigation.”
Deputy Assistant Attorney General G. Charles Beller added that the Antitrust Division “welcomes leadership from state enforcers in transactions that implicate uniquely local interests, such as when the state is a purchaser that could suffer direct injury or when potential effects on competition are limited to a single state.”
The referrals in practice
DOJ pointed to its recent work in asphalt markets to show how the approach operates. Rather than pursuing those investigations itself, the Antitrust Division handed off matters involving asphalt markets in New York, Pennsylvania and New Jersey to the AGs of those states. Each state then reached its own settlement with the merging parties to address the competition concerns in its local markets, and DOJ announced the closing of its investigations on October 29, 2026.
Referral is not the only model DOJ described. In other local matters this year, the Antitrust Division stayed involved and partnered directly with state enforcers. It joined with the California AG on a consent decree announced in May 2026 involving ready-mix concrete assets, and with the Tennessee AG about an August 2026 consent decree preserving competition for asphalt in western Tennessee. In both cases, the decree resolved potential harm to competition in a region within the state.
Broader takeaways
Federal clearance or referral does not end antitrust exposure. A DOJ decision to close an investigation may simply mean that DOJ has handed the matter to the states. Parties should treat a referral as the start of a separate state review, with its own remedies, timetable and settlement terms.
Deals where the state is a customer face heightened risk. DOJ specifically pointed to transactions in which “the state is a purchaser that could suffer direct injury.” Both asphalt matters involved road-building inputs bought by state transportation departments and municipalities. Businesses that sell to state and local governments, for example in construction materials and infrastructure, should expect state AGs to take the lead.
Single-state and regional overlaps deserve their own analysis. Transactions that look small nationally can still raise concerns in a particular state or region. Mapping overlaps by state and local markets before signing can show where a state AG is likely to act and whether divestitures should be built into the deal structure.
State remedies may reach beyond the deal at hand. The Pennsylvania and New Jersey settlements included prior-notice requirements for certain future in-state transactions. Obligations like these can affect a company’s acquisition strategy for years after closing.
National deals still face parallel federal and state review. For transactions of national importance, DOJ says it will generally form its own views, while partnering with states that “contribute distinctively to the investigation.” Companies should plan for coordinated engagement with both federal and state enforcers from the outset.
Reed Smith’s State Attorney General Tracker is here to help
As state AGs take a larger and more prominent role in merger review and antitrust enforcement, staying on top of their activity is essential to mitigate legal risk and spend. Reed Smith’s State Attorney General Tracker is a comprehensive, interactive database covering antitrust litigation, investigations, legislative developments and statutes involving state AGs in all 50 states since 2020. Users can filter their search by state, industry and type of action to focus on the developments most relevant to their business. The tracker helps clients anticipate coordinated, industry-focused investigations, keep track of how individual states interpret and enforce the law and make informed decisions before entering new markets or pursuing transactions. More about the tracker and how to gain access is available on our website.
Contact
If you have questions about this development or the potential antitrust implications for your business, Reed Smith’s Antitrust & Competition team is actively tracking these developments and is prepared to help your organization.
Client Alert 2026-208
Authors