On Friday, February 3, DOJ announced in a press release that it has withdrawn support for three joint DOJ-FTC policy statements that explicitly describe certain “safety zones” applicable to information sharing among competitors and the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 The FTC has not yet withdrawn its support for these statements and the DOJ does not apparently plan to issue new guidance, which may result in the agencies applying differing standards and,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Antitrust Division, explained that technological advancement and modern economics have rendered the policy statements outdated.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on joint ventures and other collaborations, but do not provide the same detailed guidance and safety zones as the three withdrawn statements.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 Guidance for Human Resource Professionals, which resulted in the first ever criminal enforcement action in December 2020, and first guilty plea in October 2022. While most information sharing is evaluated under the rule of reason analysis—which involves a detailed assessment of the impact of any information sharing—the DOJ may now seek to prosecute information sharing under a per se illegal theory as it has done for no-poach, should the DOJ believe the facts warrant such an approach.
The DOJ’s withdrawal of support for the 2011 ACO guidance is more curious. That guidance is newer, and was prepared in close collaboration with the Department of Health and Human Services and the Centers for Medicare and Medicaid Services (CMS) to calibrate the implementation of the Affordable Care Act’s encouragement of coordinated care organizations with antitrust law. There have been no enforcement actions brought by the DOJ or FTC against ACOs. Because the 2011 ACO guidance was a key reason for broad ACO participation, the withdrawal of this guidance will likely cause great uncertainty for this important CMS program.
These policy statements relate to healthcare organizations specifically, but the DOJ indicated that it does not see the issues in the 1993 and 1996 statements as only related to healthcare, and specifically noted poultry farming, local advertising, telecom, and other industry examples in Thursday’s comments. The DOJ also noted that it intends for a “whole of government” approach to this area, working closely with other executive branch agencies to address anticompetitive information exchanges.
Companies are likely already aware that any information sharing activities and competitor collaborations can create antitrust risk. Now, however, companies that have been relying upon the safety zones outlined in the withdrawn policy statements may want to reassess their own policies regarding those activities, in order to minimize any antitrust risk.
For further information, please contact:
Stefan M. Meisner, Partner, Crowell & Moring
smeisner@crowell.com
