Companies depend on regulatory guidance to establish robust compliance programs but recent withdrawals of key antitrust guidelines are leaving businesses in a guideless void.
What Happened
The US antitrust agencies withdrew the Antitrust Guidelines for Collaboration Among Competitors because the guidelines “no longer provide reliable guidance to the public about how enforcers assess the legality of collaborations involving competitors.” In place of the guidelines, the Department of Justice (DOJ) and Federal Trade Commission (FTC) refer businesses to the case law which, according to the agencies, accurately reflect the antitrust laws for competitor collaborations.
Why It Matters
In conjunction with the removal of the Enforcement Policy Statements in the Health Care Area, Statements of Antitrust Enforcement Policy in Health Care, and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program in 2023, this latest withdrawal leaves companies with little enforcer-drafted guidance on compliance with the antitrust laws. This safe harbor vacuum creates business uncertainty and antitrust risk.
Recommended Action
The statement of withdrawal refers companies to select cases that the agencies cite as examples of “significant cases addressing collaborations involving competitors and advancing the jurisprudence interpreting Section 1 of the Sherman Act.” The cases cited could not be more disparate. This is unsurprising because, as it is often said, antitrust cases are highly fact dependent. Therein lies the commonality of the cases cited—that each decision included a thorough review of the collaboration agreement, the collaboration in action, and the pro-competitive rationale. That is of little solace to companies seeking compliance guidance.
What is a company, trade association, or collaborative entity to do in the age of uncertainty? Seek antitrust review of collaborations, institute a compliance policy, and conduct regular antitrust trainings.
What to Watch
Both Commissioner Ferguson, the incoming Chair of the FTC, and Commissioner Holyoak, who will continue as a Commissioner under the incoming administration, dissented from the withdrawals. The dissents signal the FTC may consider providing new guidance.
Contact Robin Crauthers at McCarter & English to discuss competitor collaborations, compliance policies, and training.