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.

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.)

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:

If you have any questions about this Alert, please
contactSean 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.