DOJ paves the way for state-led review of local asphalt mergers

The US Department of Justice (DOJ) recently announced that it closed two asphalt merger investigations after referring the matters to state attorneys general. In each transaction, the merging parties and the states agreed to settlements that included the divestiture of certain facilities.

These referrals, and the subsequent state-led merger investigations and settlements, represent a new DOJ approach for transactions with only local competitive effects. Touted by DOJ as an efficient use of federal resources, this approach marks a departure from the typical practice of the federal antitrust enforcer directing the merger investigation and settlement discussions, with the states tagging along and sometimes signing on to federal enforcement actions.

For both of these transactions – 1) Colas Inc.’s acquisition of Suit-Kote Corporation and 2) CRH plc’s acquisition of Arcosa Inc. – DOJ conducted investigations and identified competitive concerns in narrow local markets for asphalt products before backing off and allowing the states to negotiate and finalize settlements with the merging parties.

• Colas/Suit-Kote: In August 2025, Colas Inc. announced its plans to acquire Suit-Kote Corporation. DOJ issued a Request for Additional Information (Second Request) to the parties in October 2025. After an “extensive” investigation, DOJ identified competitive concerns in local markets in New York and Pennsylvania where the transaction would reduce the number of asphalt suppliers. After the parties made an offer to DOJ to divest certain facilities in New York and Pennsylvania, DOJ referred the matter to those states. In October 2026, New York and Pennsylvania reached a settlement with the merging parties requiring the divestiture of three Suit-Kote facilities in New York and one Colas facility in Pennsylvania to resolve concerns that the transaction was likely to substantially lessen competition in the provision of asphalt emulsions and pavement preservation services in local markets in New York and Pennsylvania.
• CRH/Arcosa: In June 2026, CRH plc announced its $8.5 billion proposed acquisition of Arcosa Inc. After a preliminary investigation, and without issuing a Second Request, DOJ identified competitive concerns related to the sale of hot-mix asphalt in parts of New Jersey and referred the matter to the New Jersey attorney general. In October 2026, New Jersey reached a settlement with the merging parties requiring the divestiture of three Arcosa asphalt plants and two CRH asphalt plants to resolve concerns that the transaction would substantially lessen competition in the market for the manufacture and sale of hot-mix asphalt in central New Jersey.

Referring these matters to state antitrust enforcers and allowing them to negotiate merger settlements in which DOJ does not join represents a change from typical DOJ practice. Two recent enforcement actions in similar transactions involving construction materials illustrate DOJ’s more typical approach. In May 2026, DOJ required CalPortland Company to divest three ready-mix concrete plants to resolve concerns that its acquisition of ready-mix concrete assets from Vulcan Materials Company would substantially lessen competition in San Diego County, California. In August 2026, DOJ required CRH’s subsidiary APAC-Tennessee to divest two hot-mix asphalt plants to resolve concerns that its acquisition of Standard Construction would substantially lessen competition in Shelby County, Tennessee. In both of these transactions, the relevant state attorneys general joined the DOJ-led enforcement action.

Key takeaways

• Parties contemplating deals with competitive overlaps in discrete local markets should prepare for state attorney general involvement. We would expect such involvement – and similar federal enforcement agency referrals to state attorneys general – when a transaction implicates “uniquely local interests,” such as when states might be harmed as direct purchasers or when the competitive effects are isolated to a single state.
• Whether a merger investigation is led by state attorneys general, DOJ, or the Federal Trade Commission, the substantive antitrust analysis will remain largely the same. The principal difference lies in procedure (i.e., responding to a Second Request in a federal merger investigation for transactions requiring Hart-Scott-Rodino (HSR) filings versus the investigative tools available to the state attorney general).
• States that have enacted “mini-HSR” laws (laws that require certain parties that submit federal HSR filings to contemporaneously submit the same filings to state attorney general offices) will have more opportunities to take a leading role in merger investigations and ensuing settlement negotiations. So far, only Colorado and Washington have mini-HSR laws in effect that apply broadly to transactions in all industries, but California’s mini-HSR law takes effect on January 1, 2027.