“Addressing the spread of Coronavirus Disease 2019 (“COVID-19”) will require unprecedented cooperation between federal, state, and local governments and among private businesses to protect Americans’ health and safety. The Antitrust Division of the Department of Justice (“the Division”) and the Bureau of Competition of the Federal Trade Commission (the “Bureau,” and collectively 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.
(…) Since joint ventures may be necessary for businesses to bring goods to communities in need, to expand existing capacity, or to develop new products or services, the Agencies will also work to expeditiously process filings under the National Cooperative Research and Production Act
- As a general matter, the Agencies have stated that when firms collaborate on research and development this “efficiency-enhancing integration of economic activity” is typically procompetitive. See Federal Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines for Collaborations Among Competitors at 31 (2000).
- The Agencies have expressed that sharing technical know-how, rather than company-specific data about prices, wages, outputs, or costs, may be “necessary to achieve the procompetitive benefits of certain collaborations.” Id. at 15; see also Federal Trade Commission, Information Exchange: Be Reasonable (discussing the “safety zones” around information sharing).
- The Agencies have explained that they will not challenge, absent extraordinary circumstances, providers’ development of suggested practice parameters – standards for patient management developed to assist providers in clinical decisionmaking – that also may provide useful information to patients, providers, and purchasers. See Federal Trade Comm’n & U.S. Dep’t of Justice, Statement of Antitrust Enforcement Policy in Health Care at 41 (1996).
- The Agencies have also explained that most joint purchasing arrangements among healthcare providers, such as those designed to increase the efficiency of procurement and reduce transaction costs, do not raise antitrust concerns. See id. at 53 (also explaining circumstances in which joint purchasing arrangements may raise concerns).
- The antitrust laws would generally permit private lobbying addressed to the use of federal emergency authority, including private industry meetings with the federal government to discuss strategies on responding to COVID-19, “insofar as those activities comprise mere solicitation of governmental action with respect to the passage and enforcement of laws.” Eastern R. Conf. v Noerr Motors, 365 U.S. 127, 138 (1961); see also FTC, Enforcement Perspectives on the Noerr-Pennington Doctrine: An FTC Staff Report (2006) (discussing applicability and limitations).
- Interested businesses should refer to the Agencies’ previous statements on how they analyze cooperation and collaboration between competitors. See Federal Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines for Collaborations Among Competitors (2000) and Statement of Antitrust Enforcement Policy in Health Care (1996).
REQUESTING DOJ BUSINESS REVIEW LETTERS RELATED TO COVID-19
As noted above, the Division recognizes that some parties may need to receive a statement of the Division’s antitrust enforcement intentions on an expedited basis in responding to COVID-19 and its aftermath. To utilize this temporary procedure, parties should do the following:
- Requests should be submitted in writing via email at ATR.COVID19@USDOJ.GOV.
- The request must explain how it is related to COVID-19 and provide a description of the nature and rationale of the proposal (including the names of the participants, the product(s) or service(s) the proposal will cover, and the temporal and geographic scope of the arrangement), any proposed contractual or other arrangements among the parties (including copies of any documents memorializing the contract or arrangement), the names of the major expected customers, and any available information regarding the competitive significance of other providers of the product(s) or service(s) to be offered. The request must also provide the name and contact information of a person whom the Division can contact for additional information. (…)