As we head into 2026, antitrust risk is no longer confined to high-profile tech platforms and blockbuster mergers. State attorneys general (AGs), the Federal Trade Commission (FTC), and the Department of Justice Antitrust Division are pushing into areas that touch everyday business decisions such as repair policies, climate commitments, content rules, sports rights, and how we power data centers.
Below are six areas that the McCarter & English antitrust team is watching—and what business teams can do now to protect themselves from antitrust risk in 2026.
1. State AGs as Independent Enforcers
State AGs are no longer just “joining” federal cases—they’re running their own plays in healthcare, tech, private equity, environmental, social, and governance (ESG), and pricing cases, often with new talent fresh from the federal agencies, funding, and legislative tools.
What this means for businesses:
- Assume a two-front review. A deal or practice that passes federal review can still draw a state investigation, especially where local jobs, hospitals, housing, or energy prices are in play.
- Know the issues important in your “home state.” Map where the business is a major employer, hospital operator, landlord, or energy buyer/seller—those are prime targets for state scrutiny.
- Coordinate messaging early. The story to regulators, legislators, and communities needs to be consistent, pro-competitive, pro-consumer, and grounded in local facts about jobs, investment, and access.
2. Right to Repair: Everyday Products, Real Antitrust Risk
The right-to-repair movement has moved from advocacy to real cases. The FTC and state AGs have already brought actions around farm equipment repair restrictions, and manufacturers in other sectors such as autos, medical devices, and consumer electronics are next on the list.
Questions to ask now:
- Does the business limit access to parts, tools, or diagnostic software in ways that make independent or in-house repair practically impossible?
- Are repair terms clearly tied to safety, cybersecurity, or quality, and are those justifications documented, not just assumed?
- Could the business segment what truly must stay in-house (e.g., safety-critical firmware) from what could be opened up (basic diagnostics, non-safety parts)?
If the business revenue model relies heavily on captive repair, 2026 is the year to stress-test it.
3. ESG and Climate Alliances Under the Antitrust Microscope
States—especially some Republican AGs—are intensifying investigations into climate, sustainability, and ESG alliances and treating certain net-zero and investment commitments as potential cartels.
Practical steps:
- Inventory the business’s ESG collaborations. Trade associations, climate alliances, joint commitments on emissions, and shared playbooks on suppliers all should be cataloged.
- Separate “targets” from “methods.” It is one thing to aim for net-zero by a date; it’s another to discuss specific prices, output levels, or boycotts of particular suppliers.
- Build the business story. Be prepared to explain how ESG initiatives support innovation, resilience, and efficiency—not just “We did this because everyone else did.”
The key message: ESG is not off-limits, but it has to be designed with competition rules in mind.
4. Freedom of Expression, Platforms, and Distribution
There is a growing friction where content moderation, “brand safety,” and distribution rules intersect with competition—think news, app stores, and social media. Rules about what can be posted, boosted, or blocked are increasingly being framed as competition issues when they disproportionately hit rivals, journalists, or new entrants.
Steps for platform and media businesses:
- Clarify content moderation criteria. Make sure content and access rules are written, neutral, and tied to genuine safety/quality concerns.
- Avoid one-off rules for a single rival. Special rules that in practice apply to only a competitor or a disfavored speaker will draw attention.
- Document governance. Show that tough calls are made through a process—not as ad hoc business-development decisions.
5. Sports: Media Rights, Data, and NIL
Sports is a live testing ground for modern antitrust: media bundles, exclusive data deals, league rules, and name-image-likeness (NIL) arrangements all are under scrutiny. Proposed federal bills and ongoing litigation highlight concerns about collective selling of media rights and restrictions on athlete compensation and sponsorship.
If you’re a league, team, or data partner:
- Review exclusivity. Long-term, broad exclusives over data or streaming in a sport where you have real market power are going to be pressure points.
- Check NIL and sponsorship rules. Restrictions that prevent athletes from working with certain brands or platforms can be characterized as limiting competition for talent.
- Plan for unbundling questions. Be ready to explain why packages (e.g., all sports/all channels) benefit fans rather than locking them in.
6. Data Centers and Energy: The New Chokepoints
Artificial intelligence and cloud growth are driving huge investments in data centers and dedicated energy supply, including joint ventures and long-term power deals. Regulators and commentators are already flagging data-center power demand as a future antitrust flashpoint, especially where a few big buyers tie up scarce grid capacity or renewable resources.
For hyperscalers, energy companies, and infrastructure investors:
- Map the business’s dependencies. Identify markets where you control a large share of available capacity in land, power, cooling, or fiber.
- Stress-test long-term contracts. Very long, highly exclusive power or capacity deals may be challenged if they leave little room for rivals to enter.
- Build an “access narrative.” Think now about how to explain that the business’s build-out expands capacity and choice rather than locking them up.
Bottom line
In 2026, antitrust risk will be shaped as much by where you operate—states, sectors, and infrastructure—as by traditional market-share metrics. Business leaders should be sitting down now with antitrust and regulatory counsel to do three things:
- Inventory collaborations, alliances, and joint ventures.
- Test repair, access, and content policies.
- Build fact-based narratives about how the business’s strategies expand rather than restrict competition.
For more information or to discuss your specific antitrust risk, contact Robin Crauthers.