MASSACHUSETTS: An Introduction to Antitrust

Antitrust enforcement in Massachusetts historically has followed national enforcement priorities; this was the case last year and is likely to be the case in the coming year, as well. After a federal judge in August 2024 ruled that Google violated federal antitrust laws by maintaining a monopoly in online search and search text advertisements, Massachusetts Attorney General Andrea Campbell joined the U.S. Department of Justice (DOJ) and 38 other state attorney generals in seeking an aggressive package of remedies, including the forced divestiture of Google’s popular web browser, Chrome. And in January 2025, the Massachusetts Attorney General joined the DOJ’s lawsuit alleging that RealPage and five of the nation’s largest landlords engaged in an illegal price fixing scheme using algorithmic pricing to drive up rental prices. The co-ordination between the Antitrust Division of the Massachusetts Attorney General’s Office and DOJ appears likely to continue in the coming year, particularly given bipartisan skepticism toward Big Tech and the recent hiring of a veteran DOJ Antitrust Division prosecutor to head the state antitrust unit.

The Massachusetts Attorney General’s Office is organized into six bureaus, with the Antitrust Division sitting within the Health Care and Fair Competition Bureau. Consistent with this longstanding emphasis on health care issues for Massachusetts residents, the Massachusetts attorney general filed a complaint-in-intervention in May 2025 in an action initially brought by the DOJ in federal court in Washington, D.C., alleging that one of the nation’s largest pharmacies charged the state’s Medicaid program higher prices than those offered to the public. Meanwhile, in March 2025, the Massachusetts Antitrust Division, along with 50 states and territories, sought approval of a UDSD39.1 million settlement with a generic drug manufacturer in a long-running multistate antitrust enforcement action first filed in federal court in Connecticut in 2017. Health care will continue to be an enforcement priority for the Massachusetts Attorney General, particularly given amendments to Massachusetts law adopted in January 2025 requiring disclosure of private equity involvement in transactions involving health care providers and enhancing the authority of the Massachusetts Attorney General’s Office to review and propose modifications to certain transactions. These state law amendments are consistent with a national trend toward increased scrutiny of private equity transactions to prevent perceived anticompetitive industry consolidation.

Closer to home, and with right to repair issues recently coming under increased antitrust scrutiny nationwide, the Massachusetts Attorney General’s Office prevailed in a constitutional challenge brought in federal court in Massachusetts by an industry trade association against amendments to the state’s Right to Repair Law. Those amendments, overwhelmingly approved by Massachusetts voters in a November 2020 ballot initiative, require manufacturers selling vehicles in Massachusetts that “utilize a telematics system,” beginning with model year 2022, to equip those vehicles with a standardized, non-proprietary, open access telematics platform “across all of the manufacturer’s makes and models” and make telematics data available to independent repair facilities and vehicle owners. The Alliance for Automotive Innovation argued that compliance with the law was impossible because the required technology did not exist, but in a February 2025 decision, a federal judge ruled that OEMs could comply with the law by simply disabling telematics systems in vehicles sold in or into Massachusetts.

Meanwhile, on the consumer protection front, the Massachusetts Attorney General announced in March 2025 the adoption of regulations prohibiting “junk fees” and requiring sellers to disclose information necessary for consumers to understand the total cost of a product or service upfront and easily cancel unwanted costs related to trial and subscription offers. Effective September 2, 2025, the Massachusetts regulations, adopted by the Massachusetts Attorney General under powers delegated to her by the state’s Consumer Protection Act, will require businesses, among other things, to clearly disclose the total price of a product or service, including any mandatory charges or fees, and provide consumers instructions about how to reject or cancel renewal of a trial offer or subscription before being charged. The state regulations closely mirror regulations adopted by the Federal Trade Commission (FTC) targeting “junk fees” in the entertainment, hotel, and short-term lodging industries, but with considerably broader reach than the FTC’s rule.

Finally, in March 2025, the Massachusetts Supreme Judicial Court (SJC) heard argument regarding the reach of the Massachusetts Noncompetition Agreement Act (MNAA). The MNAA governs most non-compete agreements (including “forfeiture for competition agreements”) entered into in Massachusetts after October 1, 2018, and contains strict requirements, including, without limitation, that such agreements:

• be in writing executed by both employer and employee;
• be supported by garden leave or other mutually agreed-upon consideration;
• be reasonable in scope (including a one-year duration cap);
• abide by statutory notice provisions; and
• only apply to those workers permitted by statute (non-exempt employees, for example, cannot be subject to non-compete agreements).

In a case of first impression, a Massachusetts trial court dismissed a counterclaim asserted by an employer seeking repayment of “transition payments” made to an executive after she breached a post-termination non-solicitation clause in 2024. The trial court found that even though non-solicitation clauses are expressly excluded from the definition of “noncompetition agreements,” the non-solicitation clause nevertheless was a “forfeiture for competition agreement” within the ambit of the statute and that the non-solicitation clause did not satisfy the requirements of the MNAA. The SJC’s decision in this case, anticipated to enter in the summer of 2025, will be the first opportunity for the state’s highest court to consider the scope of the MNAA and interpret the text of that statute.