Video: Ashley Baker on State Attorneys General and Antitrust at the Lexington Institute
Updated: 34 minutes ago
On July 24, 2026, Ashley Baker, Executive Director of the Committee for Justice, delivered remarks at the Lexington Institute’s Capitol Hill conference on AI, cybersecurity and technology policy.
Her remarks address the shift in antitrust and consumer protection enforcement from federal agencies to more than 50 state attorneys general, from the Live Nation-Ticketmaster, Nexstar-Tegna and Paramount-Warner Bros. Discovery cases to new state pre-merger notification and algorithmic pricing laws.
She argues that this patchwork is fragmentation, not federalism: it burdens startups more than incumbents, sends settlement money to state treasuries rather than to consumers, and risks reproducing Europe’s results. National markets, she concludes, need national rules set by Congress.
Speaker
Ashley Baker
Executive Director, The Committee for Justice
Video courtesy of the Lexington Institute.
Transcript
Ashley Baker: Thank you, Mac, and thank you also, Paul, and the Lexington Institute more generally. So I’m Ashley Baker, as Mac pointed out. I’m executive director of the Committee for Justice. For those who don’t know us, we work on constitutional law issues and the courts, including judicial nominations, but a lot of my personal work concerns antitrust and the institutions that enforce it. That includes the FTC, obviously the DOJ Antitrust Division, and increasingly the more than 50 state attorneys general.
So I’m going to address the state AG issue right now. I know this is not the most fun, exciting topic compared to some of our previous speakers here, but save the more interesting, wonky thing for last, so to speak. I would say that I don’t have as interesting a story as the personal anecdotes Adam had, for example, about this.
But one quick aside when it comes to my personal view on state AG enforcement. I was testifying in front of the Senate Judiciary Committee a couple of years ago, and they did that thing where one member of Congress, a Democrat in this case, who’s a senior member, asked, “Answer the following question, yes or no.” You can only say yes or no. I hate it when they do that; it’s such a stupid exercise. But anyway, the question was: should the states have brought the lawsuits against Google, Meta, etc.?
And my yes-or-no answer was yes, because they do have the authority to do so, and I very much stand by that. They have the authority, and it would strike me as the wrong answer to say otherwise. However, I have a lot of caveats about that, which I’m about to get into, especially over the last year or so, as this has become more and more of a trend.
So enforcement overall is migrating from accountable national institutions to 50-plus political actors, who all, I should probably note, have treasuries to fill at the state level. It’s accelerating on every metric that you can measure. And the consumer benefits are at best really hard to find if you look at actual data.
So according to the National Association of Attorneys General’s litigation database, one of many, state AGs initiated seven antitrust enforcement actions just in the first half of 2026. And that was more than they filed in all of last year, or the year before that, or the year before that. And antitrust is obviously only one docket that the state AGs are supervising here. The same companies face multiple state privacy suits, which we’ll get into in a few minutes, consumer protection suits, and child safety suits, often all these things simultaneously.
So the multistate machinery is bigger and bolder too, more recently. In February, 42 states and territories filed a new price-fixing suit against Novartis, and more than 30 states recently settled generic drug price-fixing claims for $178 million. So this goes way beyond the tech companies. This goes into every aspect of consumer protection and antitrust. And this is because the machinery is working, but now it’s more pointed at technology companies. So there are three, or more than three I guess, specific developments over the past year that deserve your attention, whatever you may think about Big Tech, when it comes to state AG enforcement.
First, I’m going to cover the Live Nation-Ticketmaster lawsuit. For those who aren’t familiar, the Justice Department took the case to trial on March 2nd and settled mid-trial in that case. More than 30 state AGs, and in this case it was a genuinely bipartisan coalition (there’s a lot of momentum against Ticketmaster, I will admit to that), rejected the federal settlement as too weak. They’re litigating without the federal government in this case, which is a little bit unique in these sorts of cases. In April, they won a jury verdict under both federal and state law. They’re now demanding Tunney Act discovery in the DOJ’s own settlement.
So think about what that means more broadly. The states are no longer supplementing federal enforcement, which is what they used to do. You’d have a suit that was brought by the DOJ or brought by the FTC, and the states would piggyback on that, or vice versa. They would supplement each other in terms of how much enforcement resources they could spend on that. But now they’re litigating against the federal government’s own judgments in cases.
So second, I want to take a look at this when it comes to merger enforcement. The Nexstar-Tegna merger was a $6.2 billion broadcast deal that the DOJ and FTC both reviewed, and they both approved. Thirteen states, including Republican AGs from Indiana and Kansas, are suing to block it anyway. And the federal judge has frozen integration while the Ninth Circuit considers the appeal.
This is something I’ve been looking at recently when it comes to some of the other suits, just like the Paramount lawsuit: that TRO and the PI grant in that case from the judge really emboldens state AGs. And I think this is a really important thing to look at, because they see this case and they think, “Well, okay, we have a chance at getting the preliminary injunction.” And in some cases, they may very well do so.
And back to my previous point: just this month, last week actually, 12 states sued to block Paramount’s acquisition of Warner Bros. And that transaction very much piggybacks off the fact that there was injunctive relief in the previous deal. And a year ago, we had the Kroger-Albertsons case. Washington State enjoined that grocery merger under its own state statutes, and the deal eventually died.
And then there’s the general point, too, and those of you who are part of the antitrust defense bar are now saying, well, federal clearance is not the green light that it used to be. I mean, it was never completely a green light, but now they are very much not safe from state AGs. And I think this is a much broader problem.
And the third issue here is that the infrastructure is becoming more permanent through state legislation. California, Washington, and Colorado have enacted state pre-merger notification statutes. New York, Hawaii, Indiana, West Virginia, and the District of Columbia are considering their own as well. New Jersey just stood up a dedicated antitrust enforcement section.
New York enacted the nation’s first algorithmic pricing laws back in November, and its AG demanded Instacart’s pricing records in January following that. Maryland followed with its own statutes, very similar to that. So this is becoming a bit of a cycle and a bit of a build-out, and the dominoes are falling here.
So if you put this on the technology docket specifically and apply this to the tech companies, the broader theme of why we’re here today, let’s look at some of the more recent tech cases. In the Google search case, where the states were the co-plaintiffs, Judge Mehta declined to break the company up, obviously, last September and ordered data-sharing remedies instead. Both sides have appealed. And in ad tech, the judge’s remedies decision is pending in Virginia, while in Texas, 15 other states, represented in part (and I think this is a big deal that doesn’t get enough attention) by contingency-fee private counsel, by the plaintiffs’ bar, are taking their separate ad tech claims to trial in the Eastern District of Texas next month.
Meanwhile, the FTC actually lost the other case in November, when Judge Boasberg held that the agency failed to ultimately prove its monopolization claims against Meta. I know that oversimplifies things in the interest of time here. The FTC is now appealing that case. But Meta’s real exposure here is not to the federal government or to Judge Boasberg. It’s that more than 40 states are litigating youth safety claims against the company.
On June 30th, those state AGs won partial summary judgment under COPPA, and the trial on that begins next month. And Meta says the states’ demand approaches $1.4 trillion, like trillion with a T. That happens to just coincidentally be exactly the market cap of the company. They’re basically saying, “Hand us your company,” as a remedy in this lawsuit, which is absolutely ridiculous.
And then you have 14 state AGs with parallel suits that are more or less the same against TikTok. And Texas alone has extracted $1.4 billion from Meta under its biometrics law and $1.375 billion from Google over privacy. So we’ve seen this play out in privacy law over the years. We saw what happened in Illinois, and we now see this in Texas as well. We started with Illinois under BIPA.
But looking more broadly at this, we have to look at the incentives of the state AGs and the history. So, by way of background, Congress gave state AGs authority to bring federal antitrust suits in 1976, in the HSR Act. And since California v. ARC America in 1989, states can stack indirect purchaser remedies under state law on top of federal damages. There are several cases that led to that.
The tools were always there, but what really changed here is just the politics. Federal enforcers are perceived, whether fairly or unfairly, as taking a standoffish approach in this administration, that they are pulling back. And then with that vacuum, there are carrots and rewards in both parties on the state level. AGs, or “aspiring governors,” are called that for a reason.
So five Democratic AGs held a joint press conference, for example, in May, promising to fill federal enforcement gaps, which says all the quiet parts out loud of what they want to do. You add to that the contingency-fee outside counsel, the plaintiffs’ bar, and settlements that flow to state treasuries, and this has become more or less a machine in recent years. We’ve seen this play out in other areas of law, but right now it’s particularly targeted toward tech companies.
And so another part I should address here is the federalism claims, especially for myself as a conservative. I would say that we are federalists, or at least I am. So should we be concerned about this, or should we not?
The point that I want to make here is that federalism does have a structure. States as laboratories of democracy work when the effects of the experiment stay within the state. And digital markets, and the internet more broadly, are national and global, where states’ rules become everyone else’s rules. After National Pork Producers in 2023, the dormant Commerce Clause is not much of a check on extraterritorial state regulation, which will become a pretty big problem.
Judge Posner actually saw all this coming more than 20 years ago. He argued that states should be stripped of their authority to bring federal antitrust suits because AGs, in his words, and I’m quoting directly, “are subject to parochial political pressures and use antitrust enforcement for headlines.” And he was exactly right about that. Twenty years later, he proved to be correct on that.
Another structural point, or legal point, about these lawsuits is that more than 35 states have repealed Illinois Brick by statute. So a single course of conduct can now generate 51 lawsuits in 51 forums under 51 (well, more than 51 technically) legal standards, with no preclusion across them.
And no other advanced economy in the entire world looks at competition law this way. Even Brussels, of all places, centralizes enforcement in a single commission. And you can probably tell I’m a little bit of a fan of the unitary executive, but I think that would serve us well here. We’re running a much more fragmented competition regime than the European Union. And no one here in the United States voted for that. No one voted for the effect that would have on consumers.
So my final point is: do consumers benefit? I think you have to look at where the money goes. To give credit where credit’s due, in the Google Play Store state lawsuit, $630 million of the $700 million allegedly went to consumers. If that ends up playing out, then that at least went back to consumers.
Look at Texas’s privacy settlements. Nearly $2.8 billion combined in all the privacy settlements went to the state treasury, with no direct consumer restitution required. And outside counsel definitely took their fair share in these cases. The remedies states seek largely duplicate federal relief. And the empirical literature finds little evidence that this kind of enforcement has raised consumer welfare at large.
The costs, by contrast, are pretty concrete. A 50-state compliance patchwork functions as a tariff on national commerce, paid ultimately by consumers and startups, not incumbents. Incumbents can obviously afford 50 compliance departments. If you’re Google, if you’re Meta, if you’re Amazon, if you’re a large company, then you can afford to comply with these laws, whether they’re enforced by Brussels (fines have gotten kind of extravagant, particularly as of yesterday, if everyone’s heard the news against Google, the one billion dollars). But they can afford to comply, whereas a startup very much cannot.
So I’m going to close here with Europe, because Europe ran this experiment for us. The EU built exactly this kind of layered, discretionary, politicized enforcement apparatus for technology. Europe has produced no trillion-dollar technology company. America has produced half a dozen, and American startups raise several times the venture capital of all of Europe combined. If we replicate Europe’s regulatory model here out of frustration with particular companies, we should expect Europe’s results.
The answer is not that states have no role. It is that Congress has a job. National rules for national markets, on privacy, AI, or mergers, should be enforced predictably by accountable national institutions. The Commerce Clause exists because 13 states learned the hard way that 13 trade regimes made everyone poor, prior to the Constitution, under the Articles of Confederation.
So 51 antitrust regimes for national digital markets is not federalism. It’s fragmentation. And that’s my end point here: these AG lawsuits are something to watch, and those who care about federalism should still pay a lot of attention to this.
