COVID-19 Legal Update: Expedited Antitrust Review Process for CollaborationsPDF
In a joint statement released Tuesday, the Federal Trade Commission and Department of Justice announced that they will provide expedited antitrust advisory guidance for collaborations seeking to combat the COVID-19 pandemic. While that guidance process — provided in the form of business review letters by the DOJ and advisory opinions by the FTC — typically can take several months, the agencies stated that they will "respond expeditiously" to all COVID-19-related requests, and resolve those addressing public health and safety within seven days. The agencies also will work expeditiously to process filings under the National Cooperative Research and Production Act.
Businesses are not required to obtain pre-approval from the agencies before collaborating, but doing so may provide greater comfort that a specific proposed collaboration is consistent with the antitrust laws. Companies seeking expedited review of a proposal should expect to provide pertinent facts about the arrangement, including the names of the participants, the products or services involved, the geographic and temporal scope, any proposed contractual or other arrangements among the parties, and information on expected customers. The details on the process for seeking expedited review from each agency can be found on the FTC and DOJ websites.
Advisory opinions from the FTC and business review letters from the DOJ typically set forth the agency's present enforcement intentions regarding the proposed conduct. While they are not binding in court proceedings and they do not immunize businesses from civil liability, as a practical matter these opinions and letters can provide helpful evidence in the event that a subsequent private lawsuit challenges the conduct. Any agency response will be in effect for one year.
For businesses that need to act immediately to address the spread of COVID-19, the statement also reiterated that many forms of business collaboration are often lawful and procompetitive, including joint research and development, exchange of technical information (as opposed to the exchange of company-specific information about prices, wages, outputs or costs), developing patient care standards, joint purchasing arrangements among health care providers, and lobbying. The agencies also noted that they will account for exigent circumstances in evaluating efforts to address the spread of COVID-19.
Finally, the joint statement made clear the agencies' intent to pursue civil or criminal enforcement actions against individuals or companies that use the pandemic as an "opportunity to subvert competition or prey on vulnerable Americans." The agencies specifically warned against agreements to raise prices or reduce output and efforts by monopolists to use their market power to engage in exclusionary conduct.
If you have any questions about collaborations or other business ventures that may raise antitrust concerns — whether in response to COVID-19 or generally — please contact the authors or any member of Robinson Bradshaw's Antitrust and Competition Practice Group.