Clifford Chance

We have spotted an emerging micro-trend in government enforcement that involves a somewhat novel use of federal and state laws prohibiting conspiracies that unreasonably restrain trade and could affect clients across a wide range of sectors. Clients should be aware of this development and take steps now to prepare for potential investigations and litigation. 

The legal claim underpinning this trend is the federal prohibition on certain types of concerted conduct that harms competition. Sherman Act Section 1 prohibits "[e]very contract, combination. . . or conspiracy in restraint of trade or commerce among the several States, or with foreign nations." 15 U.S.C. § 1. That obviously covers agreements among competitors to fix the price of goods sold, restrict output, allocate markets or customers, or to engage in group boycotts. It's also clear that it can reach agreements with competitors to pay the same price for raw materials and other inputs, including labor. The same conduct may also violate the laws of all states (and DC and Puerto Rico) which have mini-Sherman Act statutes.

In the last few months, a series of cases have been filed that rely on that well-established law in new(ish) ways.

A. Challenges to Alleged Industry Agreements to Promote Climate and Clean Energy Efforts

In November 2024, a few weeks after the US presidential election, a group of eleven state attorneys general sued three of the largest institutional investors in the world, BlackRock, State Street Corporation, and Vanguard Group, for allegedly conspiring to artificially restrict the market for coal. The lawsuit alleges that the three investors agreed to acquire substantial stockholdings in significant publicly held coal producers in the United States in order to gain control over the policies of those companies and pressure them to reduce coal output by more than half by 2030.¹

Around the same time, Nebraska Attorney General Mike Hilgers sued a number of the largest heavy-duty truck manufacturers in the United States, and the industry trade association, for allegedly conspiring to reduce the availability of internal-combustion trucks in favor of electric trucks.² The complaint alleges that these truck manufacturers colluded to sign a "Clean Truck Partnership Agreement" with California in response to the state's newly imposed 'clean fleets' regulatory regime.

These efforts are consistent with those of the first Trump Administration where, for example, the Department of Justice ("DOJ") launched an antitrust investigation into automakers that had agreed to adopt California's new emissions standards—allegedly defying the Trump Administration.³

B. Using Antitrust Laws to Challenge Alleged Limits on Freedom of Speech

The Trump Administration has made the protection of free speech, especially on online platforms, one of its priorities for the next four years.⁴ Newly-appointed Federal Trade Commission ("FTC") Chair Andrew Ferguson urged the FTC to "vigorously enforce the antitrust laws against any platforms found to be unlawfully limiting Americans' ability to exchange ideas freely and openly" and to end "Big Tech's vendetta against competition and free speech."⁵ That could be considered unilateral conduct and enforcement would then fall under Sherman Act Section 2, although it may be difficult to prove that any one company has monopoly power over dissemination of certain types of speech, let alone that it engaged in anticompetitive conduct to willfully acquire or maintain that power.

It is possible that government agencies would proceed on a conspiracy theory. FTC Chair Ferguson suggested the FTC may investigate purported collusion between online platforms and in supposed advertiser boycotts related to certain types of online speech, both of which he deemed potential threats to competition.⁶ And on February 20, 2025, the FTC announced that it was launching an inquiry into "tech censorship"—requesting public comments on how consumers may have been harmed by technology companies that limited their ability to share ideas and affiliations freely and openly in contrast to X (formerly Twitter) which, he opined, was a "suitable free-speech-respecting substitute."

C. Using Antitrust Laws to Combat DEI and ESG Efforts

The administration has similarly made it clear that it will also focus on Diversity, Equity, and Inclusion ("DEI") and Environmental, Social, and Governance ("ESG") practices in the workplace, and, again, FTC Chair Ferguson has promised to "prosecute collusion" on DEI and ESG.⁷ As a result, we anticipate the potential that industry-wide efforts to establish guidelines for those efforts may be subject to antitrust scrutiny. A 'best practices' agreement among companies to fill a certain percentage of leadership positions with members of traditionally-underrepresented groups (i.e., by race, ethnicity, gender) might be characterized as an agreement to restrict demand for members of other groups.

On March 20, 2025, Florida attorney general James Uthmeier announced investigations into whether two leading proxy advisors' advice involving the consideration of DEI and ESG is a violation of Florida antitrust laws or constitutes deceptive or unfair trade practices under Florida law.⁸ The investigation will assess whether these advisors unlawfully colluded in adopting and enforcing DEI and ESG policies.⁹

Alternatively, we could see an increase in lawsuits from Democratic state attorneys general claiming the opposite—alleging that an industry-wide abandonment of DEI initiatives is illegal and in violation of Section 1 of the Sherman Act.

Takeaways

These are just a few of the 'conduct' or 'behavioral' areas where we expect companies will see an increase in antitrust risks. As such, we advise that any client activity in these areas be subject to careful antitrust compliance review to mitigate risks -- particularly if the company has participated in industry-wide benchmarking or best-practices effort, or trade association or other discussions with rivals, on the topics of clean energy, speech or content guidelines, or DEI and ESG efforts.

The strength of these cases will ultimately depend on the facts and how those facts align with the applicable law. For example, unilateral decision-making to support clean energy is unlikely to be problematic because Section 1 (and its state equivalents) requires a meeting of the minds or a conscious commitment to a common scheme designed to achieve an unlawful objective,¹⁰ perhaps explaining why the first Trump Administration ultimately dropped its antitrust inquiry into automakers that had agreed to adopt California's new emissions standards.¹¹

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1. BlackRock, Vanguard Accused of Antitrust Violations by Texas, Bloomberg, Nov. 27, 2024 (https://www.bloomberg.com/news/articles/2024-11-27/blackrock-vanguard-accused-of-violating-antitrust-law-by-texas); see also, Attorney General Ken Paxton Sues BlackRock, State Street, and Vanguard for Illegally Conspiring to Manipulate Energy Markets, Driving Up Costs for Consumers, Press Release, Attorney General of Texas, Nov. 27, 2024 (https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-sues-blackrock-state-street-and-vanguard-illegally-conspiring-manipulate)

2. Attorney General Hilgers Sues Truck Manufacturers for Conspiring to Force Transition to Electric Trucks, Nebraska.gov, Nov. 19, 2024 (https://ago.nebraska.gov/news/attorney-general-hilgers-sues-truck-manufacturers-conspiring-force-transition-electric-trucks#:~:text=Lincoln%2C%20NE%20%E2%80%93%20Attorney%20General%20Hilgers,of%20regulations%20designed%20to%20essentially)

3. Timothy Puko and Ben Foldy, "Justice Department Launches Antitrust Probe Into Four Auto Makers," The Wall Street Journal, Sept. 6, 2019 (https://www.wsj.com/articles/justice-department-launches-antitrust-probe-into-four-auto-makers-11567778958)

4. Presidential Actions: "Restoring Freedom of Speech and Ending Federal Censorship," The White House, Jan. 20, 2025 (https://www.whitehouse.gov/presidential-actions/2025/01/restoring-freedom-of-speech-and-ending-federal-censorship/)

5. https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-goat-concurrence.pdf

6. https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-goat-concurrence.pdf

7. FTC Commissioner Andrew N. Ferguson for FTC Chairman, Punchbowl News, accessed on Mar. 20, 2025 (https://punchbowl.news/wp-content/uploads/FTC-Commissioner-Andrew-N-Ferguson-Overview.pdf)

8. Attorney General James Uthmeier Announces Investigation into Glass Lewis & Co. and Institutional Shareholder Services Inc for ESG and DEI Policies, Press Release, Office of the Attorney General of Florida, Mar. 20, 2025 (https://www.myfloridalegal.com/newsrelease/attorney-general-james-uthmeier-announces-investigation-glass-lewis-co-and)

9. In another example of attacks on DEI policies, in February 2025, Missouri attorney general Andrew Bailey filed suit against Starbucks for allegedly violating federal and state laws prohibiting race discrimination by "unlawfully segregate[ing] employees, and providing exclusive training and employment benefits to select groups." See Attorney General Bailey Files Suit Against Starbucks for Race-and-Sex Based Discrimination, Press Release, (https://ago.mo.gov/attorney-general-bailey-files-suit-against-starbucks-for-race-and-sex-based-discrimination/). While the Missouri lawsuit against Starbucks alleges violations of anti-discrimination laws, it is a strong indicator of potential suits in this area possibly alleging industry-wide or multi-company agreements to adhere to DEI standards which restrict demand for non-diverse or non-male employees.

10. Monsanto Co v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984).

11. Coral Davenport, "Justice Department Drops Antitrust Probe Against Automakers That Aided with California on Emissions," The New York Times, Feb. 7, 2025 (Justice Department Drops Antitrust Probe Against Automakers That Sided With California on Emissions - The New York Times).