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FinCEN Seeks Immediate Stay of Nationwide CTA Injunction

Antitrust Advocate

DOJ and FTC Withdraw Antitrust Competitor Collaboration Guidelines

ADventures in Law

Lights, Camera, Brand!: The Rise of In-House Film Studios

Potential Risks to Financial Stability: The Financial Stability Oversight Council’s 2024 Annual Report

The US Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) <a href="https://www.law360.com/articles/2272795/attachments/0" target="_blank" rel="noreferrer noopener">announced</a> on Wednesday the withdrawal of the <a href="https://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-among-competitors/ftcdojguidelines-2.pdf" target="_blank" rel="noreferrer noopener">Antitrust Guidelines for Collaborations Among Competitors</a> originally issued in 2000. The agencies said that “while some specific aspects of the Collaboration Guidelines may accurately reflect that state of the law, the Collaboration Guidelines no longer provide reliable guidance to the public about how enforcers assess the legality of collaborations involving competitors.” The withdrawn guidelines provided the agencies’ approach to how they would analyze collaborations between competitors under the antitrust laws. The guidelines included safety zones and gave recommendations on which types of conduct were likely, or less likely, to violate the antitrust laws. The guidelines were designed to give a degree of certainty concerning anticompetitive effects of competitor collaborations.

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The joint statement withdrawing the Collaboration Guidelines points to recent antitrust decisions as one of the reasons for withdrawing the guidance. “In the 24 years since the Collaboration Guidelines were issued, the Supreme Court and the federal courts of appeals have decided many significant cases addressing collaborations involving competitors and advancing the jurisprudence interpreting Section 1 of the Sherman Act,” the antitrust agencies wrote in their official joint statement. “The Collaboration Guidelines do not reflect this evolution.”

Of particular concern for the agencies was that keeping in place outdated guidance raised the risk of “creating safe harbors that have no basis in federal antitrust statutes.” The agencies said their old collaboration guidance relied upon “outdated analytical methods that fail to capture advances in computer science, business strategy and economic disciplines that help enforcers assess, as a factual matter, the competitive implications of corporate collaborations[.]” The agencies also said that the former guidelines “fail to address the competitive implications of modern business combinations and rapidly changing technologies such as artificial intelligence, algorithmic pricing models, vertical integration, and roll ups.”

The FTC revoked the guidelines with a 3-2 party line vote. Republicans Andrew N. Ferguson — whom President-elect Donald Trump said he intends to nominate as FTC chair — and Melissa Holyoak opposed the move. Ferguson <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/collaborations-guidance-withdrawal-ferguson_-statement.pdf" target="_blank" rel="noreferrer noopener">argued</a> that revoking these guidelines “a mere 40 days before the country inaugurates a new President” was inappropriate.

In 2023, the DOJ and the FTC withdrew a group of healthcare antitrust policy statements, finding that safe harbors for provider collaboration and purchases of small hospitals “no longer reflect market realities.” The withdrawal of the broader 2000 guidelines is consistent with the withdrawal of the healthcare guidelines in that the “safe harbors” provided by those guidelines are no longer in place to provide certainty to the business community concerning competitor collaborations. It remains to be seen whether new guidance will be put in place and, without such guidance, there is less certainty for businesses concerning how collaborations with competitors will be treated by the agencies. In particular, businesses should look at competitor collaborations, including data sharing through third-party vendors, and should engage counsel to conduct a review.<br>

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