December Antitrust and Competition Bulletin: Top-of-Mind Global Antitrust Issues

Welcome to the final edition of the Sidley Antitrust and Competition Bulletin for 2025 — thoughts on topics that are top of mind for Sidley’s global Antitrust and Competition team and why they may matter to you.

• A recent second request by the U.S. Federal Trade Commission (FTC) reportedly seeks to investigate Cantaloupe, Inc. for publicly praising rivals for “disciplined competition.”
• Several defenses have recently been brought against state-level antitrust enforcement actions.
• FTC finalizes first noncompete settlement after abandoning rulemaking effort.
• The Organisation for Economic Co-operation and Development recently published decade of data gathering shows an increase in merger control but declining antitrust enforcement.
• The UK government recently asked the UK Competition and Markets Authority to probe the private dentistry sector.

Read more on how this news can affect your business below.

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Executive statements in earnings calls pique FTC interest: Providence Equity Partners’ proposed acquisition of Cantaloupe, Inc. may face additional antitrust scrutiny stemming from statements made by Cantaloupe executives on earnings calls. Prior to the proposed transaction, Cantaloupe executives categorized Cantaloupe and Retail 365 as a “duopoly” in the markets where they compete. Cantaloupe executives also publicly commended rivals for “responsible pricing” and “responsible competition” in reference to examples of increased prices among competitors and higher margins for Cantaloupe.

Why it matters: Any investigation by the government related to a particular transaction always has a risk of expanding into other areas of the business or other potential competition concerns. This particular investigation highlights the need for companies to be mindful of statements made in earnings calls and other public arenas. This is not a uniquely U.S. concern; the EU General Court recently confirmed that statements made by senior executives during earnings calls may constitute sufficiently credible indicia to justify unannounced inspections by the European Commission where the statements appear to signal or support anticompetitive conduct.

State-level antitrust laws face constitutional pushback: Over the past year, we have covered the growing wave of state-level antitrust and competition laws — from California’s statute targeting algorithmic pricing to individual state premerger notification regimes. Companies now are beginning to respond by testing constitutional and structural defenses to limit the reach of these laws. Two high-profile matters exemplify the pushback. 

• RealPage, Inc., is seeking to enjoin a New York statute that went into effect this week and prohibits landlords from setting rents, rent-related terms, and occupancy “based on recommendations” from a software as an unconstitutional ban on speech. In its complaint, RealPage characterizes its software as in protected speech through the “creation and dissemination of information.” The state has not yet responded.
• The Association for Accessible Medicines (AAM), a trade group representing generic pharmaceutical manufacturers, successfully argued that a California law prohibiting reverse patent settlements exceeded constitutional limits by regulating conduct occurring wholly outside the state’s borders. The Eastern District of California held the statute to be unconstitutional as applied to settlements negotiated, completed, or entered outside the state and permanently enjoined the state from enforcing the law with respect to any settlement that lacks connection to California. California has since appealed the decision to the Ninth Circuit.

Why it matters: The RealPage and AAM cases underscore new and potentially powerful patterns of resistance as states experiment with broadening the reach of their antitrust and competition statutes. These cases shift the litigation battlefield away from the merits of alleged anticompetitive conduct and toward foundational questions of constitutional authority and interstate reach. This strategic shift may resonate with courts that sometimes approach novel antitrust theories with caution. 

FTC enters first final judgment banning noncompete since abandoning national rulemaking. In early September 2025, the FTC formally abandoned its defense of the Biden-era Noncompete Rule. Almost simultaneously, however, the FTC made clear that noncompete provisions remain an enforcement priority, with the agency shifting from broad rulemaking to case-by-case enforcement under existing antitrust authority. The day before abandoning the rule, the FTC issued an administrative complaint against and a proposed consent agreement with Gateway Services, Inc. (a large pet cremation services provider) based on allegedly overbroad and unjustified noncompetes. Despite the FTC’s subsequent abandonment of the rule, the final order against Gateway Services was entered and creates a broad 10-year prohibition on noncomplete clauses (with some limited exceptions) and individualized notice to up to 1,800 employees ostensibly subject to voided clauses. 

Why it matters: Since September, FTC leadership has continued to frame enforcement against “unreasonable” noncompetes as a top priority, including issuing warning letters to healthcare employers and staffing firms urging a comprehensive review of employment agreements. The agency also launched a public inquiry explicitly aimed at gathering information to inform possible future enforcement actions. And the FTC announced a public workshop — “Moving Forward: Protecting Workers from Anticompetitive Noncompete Agreements” — as part of its effort to highlight harms and put businesses on notice of enforcement priorities. Even without a nationwide FTC rule, employers are wise to remain vigilant and have any noncompete agreements reviewed by counsel.

OECD study reveals apparent decline in nonmerger antitrust enforcement. The Organization for Economic Co-operation and Development (OECD) published its findings from a retrospective study of antitrust conduct investigations and nearly 100,000 merger notifications from 2015–24. Key findings from the study included: 

- Cartel enforcement appeared to decrease, with a concurrent reduction in leniency applications.

- Enforcement against abuse of dominance experienced the most notable decline, making up just 15% of competition authorities’ investigations (down from a 2021 peak of 39%). 

- The use of swifter resolution mechanisms such as commitments and settlements in abuse of dominance cases has increased — but decreased slightly in cartel cases.

- Merger notifications have increased by about 20% with authorities intervening in approximately 5% of cases (less than 0.3% of all notified mergers were prohibited, with less than 2% requiring remedies).

Why it matters: The findings of this study may not necessarily signal an actual or conscious decline in enforcement by authorities. There are many factors at play, such as increasingly complicated cases, shifts in authorities’ focus to implementing new digital rules, and limited resources coupled with increased merger activity (and laws regulating merger activity). It may also mark the gradual shift from “typical” antitrust conduct infringements to “new” perceived digital harms and the need for authorities to adapt their toolkits and procedures to meet the demands of these changing markets. 

CMA encouraged to open study into private dentistry market: On November 18, the UK Chancellor wrote to the UK Competition and Markets Authority (CMA), asking it to consider launching a study into the private dentistry market. The CMA was asked to consider “the effectiveness of competition between private dentistry providers, including at a local level, and the ability of consumers to make effective choices and obtain good value for money.” The CMA welcomed the request, noting that it has undertaken preliminary work and was developing a proposal for a market study.

Why it matters: Market studies are examinations into why particular markets may not be working well. A study’s aim is to identify the reasons for any market deficiencies and to propose solutions to improve the operation of the market. In an interim report in a recent study, the CMA outlined several possible options for improvements for the market and was clear that its intention at the end of the study was to present a set of specific and actionable recommendations, which is in line with its recent approach reflecting policy developments to reach solutions quickly and proportionately. Nonetheless, one of the outcomes of a market study is an in-depth market investigation, which remains a possibility in this area and happened with the CMA’s market study into veterinary services for household pets in 2024.