Antitrust Law Daily Wrap Up, ACQUISITIONS & MERGERS NEWS: State AGs champion, while Hewlett-Packard opposes, evidentiary hearing on HPE/Juniper merger consent agreement, (Mar 16, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

State attorneys general claim that in reaching a settlement agreement five months after filing the lawsuit, the government abandoned a "very strong case" on considerations more political than practical.

Hewlett Packard Enterprise Company and a group of state attorneys general have filed their respective briefs in preparation for a Tunney Act hearing on the proposed entry of a consent agreement of a negotiated settlement resolving the DoJ Antitrust Division's lawsuit seeking to block a merger in the Wireless Local Area Network industry. The attorneys general oppose the consent agreement in its latest negotiated form and urge the court to conduct an evidentiary hearing, while Hewlett Packard opposes the evidentiary hearing and supports the immediate entry of the consent agreement (U.S. v. Hewlett Packard Enterprise Co., No. 5:25-cv-00951-PCP (N.D. Cal. Mar. 13, 2026)).

Background. A Wireless Local Area Network (WLAN) is a system that connects computer user devices such as laptops, smartphones, and tablets that use radio wave transmissions to one another and to other networks, wireless or otherwise. The January 2024 announcement that WLAN provider Hewlett Packard Enterprise Co (HPE) planned to acquire WLAN provider Juniper Networks, Inc. (Juniper) drew attention in antitrust enforcement circles because the post-merger entity, along with leading WLAN provider Cisco Systems, Inc. (Cisco), would result in a duopoly that would command 70 percent of the WLAN market.

Approximately one year later, following an investigation, the Department of Justice Antitrust Division (ATD) filed a complaint against HPE and Juniper, seeking to block the acquisition. On June 27, 2025, the ATD reached a settlement agreement with HPE and Juniper, whereby the proposed acquisition would proceed, subject to (1) HPE's divestiture of certain assets; and (2) a public auction of software source code licenses to third parties. As a proposed consent judgment of an antitrust case brought by the government, the settlement agreement triggered the operation of the Antitrust Procedures and Penalties Act (Tunney Act) [15 U.S.C. § 16], which entails publication, receipt of public comment, and a court determination that the consent judgment serves the public interest.

In November 2025, the attorneys general of 12 states plus the District of Columbia were granted permission to intervene in the litigation; the attorneys general have expressed serious concerns over the proposed consent judgment. The attorneys general articulate concerns that the ATD's duty to promote and ensure competition in the marketplace have been undermined and subverted by political considerations and dynamics within the ATD, including public statements by a former ATD official.

On January 5, 2026, the ATD moved for entry of the consent judgment. Pursuant to the Tunney Act procedures, the court scheduled a hearing on the ATD's motion on March 23, 2026; at that time the court can either (1) immediately begin an evidentiary hearing to make a public interest determination; or (2) determine that no hearing is necessary and immediately enter the consent judgment. The intervening attorneys general have filed opposition to the STD's motion to enter the consent judgment, and requested the court to conduct an evidentiary hearing. HPE has filed opposition to the attorneys generals' evidentiary hearing request, having previously filed a statement of support on February 2, 2026 supporting the ATD's motion to enter the consent judgment.

The states' brief. The brief submitted by the state attorneys general opposes the entry of the consent agreement. The brief asserts that neither the ATD nor HPE fulfilled their disclosure obligations under the Tunney Act, including but not limited to all the alternatives it considered; the attorneys general note that "the DOJ made two settlement demands that were worlds apart from what was ultimately agreed upon" and highlight gaps between those initial demands and the settlement agreement. The brief goes so far as to say that the ATD rejected alternatives actually considered that were more competition-friendly than the settlement agreement. Procedurally, it was HPE that filed the Competitive Impact Statement (CIS), and not ATD as mandated by the Tunney Act [15 U.S.C. 16(b)]. HPE, for its part, did not disclose matters discussed with government officials by its employees and agents.

The attorneys general assert that the ATD's position should be completely disregarded because the ATD "completely abdicated its role as a principled defender of the antitrust laws, and through the corrupt lobbying process has abandoned any semblance of a reasoned and principled decision-making process." This, the attorneys general claim, was done by buckling under to the former government officials engaged by HPE to sway the ATD. The attorneys general also make much of the personnel changes that occurred within the ATD, including the removal of the Assistant Attorney General who had been in charge of the ATD.

The attorneys general brief also asserts that the national security issues asserted by HPE have no justification, else "the Court might expect a robust defense of those arguments from the United States. But the United States conspicuously offers none."

HPE's brief. HPE urges the court that an evidentiary hearing is unnecessary. HPE's brief says that the state attorneys general already "were permitted unprecedented discovery" in which they educed thousands of documents with a plethora of information; the information that would be given by the attorneys generals' experts would be duplicative of information already before the court.

HPE observes that the state attorneys general have advanced, as one basis for the evidentiary hearing they seek, the opportunity to elicit testimony from "the disgruntled DOJ political appointee who gave a speech claiming that two senior DOJ officials with oversight over the DOJ antitrust division" improperly negotiated the settlement; this potential witness, "almost entirely uninvolved in the settlement process," had already failed to give any basis for his claims of impropriety, even during his previous deposition to the attorneys general as a friendly witness.

The state attorneys general carelessly failed to seal many filings with the court that contained confidential information, some of which were inadvertently disclosed during the few hours overnight when the filings were available to the public, thereby exposing "the identities of every bidder and details of several bids in the auction process," resulting in HPE and Juniper being inundated with inquiries from the news media and others.

HPE implores the court to not add to the already progressively expensive litigation by conducting an evidentiary hearing, declaring that such would run contrary to the Congressional intent of judicial economy that was the basis for the Tunney Act.

The Case is No. 5:25-cv-00951-PCP.

Judge: Pitts, P.

Attorneys: Aaron M. Sheanin, U.S. Department of Justice, for the U.S. Eric J. Mahr (Freshfields US LLP) for Hewlett Packard Enterprise Co.

Companies: Hewlett Packard Enterprise Co.

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