DOJ Withdraws "Safety Zones" For Information Sharing And Other Collaborations

• Jurisdiction: United States,Federal
• Law Firm: Crowell & Moring
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Author: Stefan Meisner, Shawn R. Johnson, Alexis Gilman, Olivier N. Antoine, Troy Barsky and Ashley McMahon
• Published date: 09 February 2023

On Friday, February 3, DOJ announced in a press release that it has withdrawn support for three joint DOJ-FTC policy statements that explicitly describe certain "safety zones" applicable to information sharing among competitors and the formation of certain competitor collaborations (including healthcare provider joint ventures and accountable care organizations (ACOs)) that the antitrust agencies did not intend to prosecute. See 1993 Policy Statement, 1996 Policy Statement, 2011 Accountable Care Organizations. The FTC has not yet withdrawn its support for these statements and the DOJ does not apparently plan to issue new guidance, which may result in the agencies applying differing standards and, at a minimum, creates more uncertainty about how the agencies will evaluate conduct covered by these guidance documents.

In a statement at a Global Competition Review conference on February 2, Doha Mekki, Principal Deputy Assistant Attorney General and second-in-command of the DOJ's Antitrust Division, explained that technological advancement and modern economics have rendered the policy statements outdated. The press release also cited "promoting competition and transparency" as the reason for their withdrawal. DOJ indicated that it has "no immediate plans to replace them."

Withdrawing these policy statements means the removal of the protection from antitrust scrutiny in these areas. However, there still exists Supreme Court and other case law on the topic of information sharing that is still controlling law in the US. See e.g., United States v. Citizens & S. Nat. Bank, 422 U.S. 86, 113 (1975) (dissemination of price information is not itself a per se violation of the Sherman Act); Maple Flooring Manufacturers Ass'n v. United States, 268 U.S. 563 (1925) (upholding the exchange of statistical information about past prices and other data without customer identification). Case law and the agencies' Antitrust Guidelines for Collaborations Among Competitors still provide guidance on joint ventures and other collaborations, but do not provide the same detailed guidance and safety zones as the three withdrawn statements.

This policy change signals that the DOJ is looking to bring enforcement actions to develop avenues to challenge information sharing and other competitor collaborations. This may be similar to the DOJ's work to develop no-poach enforcement that began after the October 2016 publication of the DOJ and FTC's Antitrust...