FTC, DoJ Announce COVID-19 Antitrust Guidance

In a joint statement released Tuesday, the Department of Justice and the Federal Trade Commission released guidance acknowledging that “unprecedented cooperation between federal, state, and local governments and among private businesses” is necessary to address the COVID-19 pandemic sweeping the world. To encourage this competition, the agencies “wish to make clear to the public that there are many ways firms, including competitors, can engage in procompetitive collaboration that does not violate the antitrust laws. “

The agencies conduct much of the antitrust law enforcement in the United States. The statement explained that each agency offered services to provide guidance on proposed business practices. While the DoJ’s Business Review Process and the FTC’s Advisory Opinion Process usually take several months to evaluate conduct, the agencies said they would “respond expeditiously to all COVID-19 related requests,” and would respond to public-health related questions within a week.

The agencies also announced that they would expedite petitions for joint ventures under the National Cooperative Research and Production Act.

The statement also provided guidance on a number of specific scenarios. Research collaboration, for example, is seen as generally procompetitive, while sharing “technical know-how” as opposed to costs, wages, and other information is also acceptable. The agencies pledged, absent extraordinary circumstances, to not challenge standards for patient management. Finally, the agencies gave the green light to joint purchasing agreements in the healthcare industry.

The guidance is designed to expedite decisionmaking by businesses amidst the pandemic. However, the agencies made clear their intent to prosecute individuals or entities that aim to take advantage of the pandemic. ” In particular, the Division and the Bureau stand ready to pursue civil violations of the antitrust laws, which include agreements between individuals and business to restrain competition through increased prices, lower wages, decreased output, or reduced quality as well as efforts by monopolists to use their market power to engage in exclusionary conduct.”