On January 30, 2025, the DOJ sued to block the merger, alleging that the proposed transaction would eliminate competition between HPE and Juniper, leading to higher prices and reduced innovation.

On October 14, 2025, a coalition of 13 state attorneys general, including those from California, New York, Massachusetts and Illinois, filed a motion seeking to intervene in the Tunney Act review by the United States District Court for the Northern District of California of the U.S. Department of Justice’s (DOJ) settlement that allowed the $14 billion merger between Hewlett Packard Enterprise (HPE) and Juniper Networks to proceed.

On January 30, 2025, the DOJ sued to block the merger, alleging that the proposed transaction would eliminate competition between HPE and Juniper, leading to higher prices and reduced innovation. The companies are two of the three largest providers of enterprise-grade wireless local-area-network (WLAN) products.

On June 28, 2025, less than two weeks before trial, the DOJ and the merging parties reached a consent decree settling the case and allowing the merger to go forward. The settlement requires HPE to divest its “Instant On” WLAN business and license Juniper’s key software to competitors. The DOJ’s decision to settle the case—shortly before trial and amid public reports of lobbyists attempting to influence the Trump administration to approve the deal and the firing of two Antitrust Division attorneys involved in the government’s review—led to calls for an investigation of the circumstances leading up to the settlement.  

The Tunney Act

In 1974, in response to public reports of improper influences behind the DOJ’s settlement of an antitrust lawsuit against International Telephone & Telegraph, Congress passed the Tunney Act. The Act requires that before any consent decree resolving an antitrust case may be entered, the DOJ must publish the proposed judgment, invite public comment and obtain a judicial determination that the settlement is “in the public interest.” Although the Act gives the reviewing court the authority to conduct an evidentiary hearing, courts have historically deferred heavily to the DOJ’s judgment that the settlement is in the public interest, conducted the review on the written record alone and approved the settlement.

The Tunney Act also allows “interested persons or agencies” to intervene in the review proceedings. The 13 state attorneys general brought their intervention action under this provision of the Act.

The states contend that the settlement process lacked transparency and that alleged lobbying and political influence may have tainted the review. They also claim that the substantive terms of the proposed settlement are “facially inadequate” in that they do not address the harm pled in the complaint. They ask the court to conduct a full evidentiary hearing, in which the states can appear as parties, to ensure that the settlement serves the public interest.

Since the Act’s passage in 1974, only one evidentiary hearing has been held. In 2019, Judge Richard Leon of the United States District Court for the District of Columbia conducted an evidentiary hearing to review the CVS-Aetna merger. Judge Leon approved the merger following the hearing. (Note: Duane Morris represented an amicus participant at the hearing.)

Implications for Merging Parties

While it is too early to tell whether the court will allow the states to intervene, there are a few key takeaways from the states’ action for companies involved in merger planning:

• State attorneys general have shown an increased willingness to step in even when federal antitrust authorities approve a deal. Merging parties should anticipate that approval of a deal may be held up as a result of action by the states.
• Companies should maintain clear records of the competitive analysis, internal decision-making, remedial design and stakeholder involvement, including any interactions with state enforcement agencies or lobbyists.
• Companies should identify jurisdictions where the target or acquirer has significant operations, customers or suppliers, and evaluate likely state attorney general interest. Preemptive mitigation strategies should include outreach to state attorneys general offices in these jurisdictions.
• Companies should consult with experienced antitrust counsel on responding to government inquiries involving complex merger-control and antitrust issues.

For More Information

If you have any questions about this Alert, please contact Sean P. McConnell, Christopher H. Casey, Nina Kalandadze, any of the attorneys in our Antitrust and Competition Group, any of the attorneys in our State Attorneys General Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.