By Edwin Buffmire & Elizabeth Pittman
The Antitrust Division of the Department of Justice issued a significant announcement addressing the COVID-19 pandemic’s effect on antitrust compliance and enforcement. In a joint statement with the Bureau of Competition of the Federal Trade Commission, the Agencies announced new antitrust guidance and an expedited 7-day advisory opinion procedure for business collaborations responding to the health crisis, a process that typically takes months.
The Agencies recognize that this crisis will require “unprecedented cooperation between federal, state, and local governments and among private businesses to protect Americans’ health and safety.” As part of an effort to enable procompetitive collaboration to address the pandemic, the Agencies seek to respond to all COVID-19 related requests “expeditiously,” and specifically aim to resolve all requests addressing public health and safety within seven calendar days of receiving all necessary information. The Agencies have created dedicated email addresses for parties to submit COVID-19-related requests and specified necessary supporting information.
The announcement reminds businesses that antitrust law continues in full force—there is no pandemic defense for illegal conduct under the antitrust laws.
The Agencies’ favorable advisory opinions typically state that they do not intend to challenge the submitted conduct. While such opinions are not binding on courts, nor preclude private plaintiffs from filing suit, they can be very persuasive in potential private civil litigation.
The statement also provides examples of collaborative activities in response to the pandemic that would be consistent with antitrust laws. These examples include:
- Collaboration on research and development that enhances the efficiency and integration of economic activity;
- Sharing of technical know-how (although no company-specific data) which may be “necessary to achieve the procompetitive benefits of certain collaborations”;
- Development of standards for patient management to assist medical providers in clinical decision making, absent extraordinary circumstances;
- Joint purchasing agreements among healthcare providers, including agreements designed to increase the efficiency of procurement or to reduce transaction costs;
- Private lobbying for the use of federal emergency authority, such as private industry meetings with the federal government, so long as these activities are a “mere solicitation of governmental action with respect to the passage and enforcement of laws.”
The Agencies acknowledge that exigent circumstances exist in evaluating COVID-19 related collaborations, but note that any type of joint effort arising out of the pandemic should be limited in time and scope to activities “necessary to assist patients, consumers, and communities affected by COVID-19.” The Agencies also made clear that they “will not hesitate to seek to hold accountable” those who take advantage of the crisis. Both the Division and Bureau are prepared to pursue any civil or criminal violations of the antitrust laws, including agreements or conspiracies between entities to restrain competition and exclusionary conduct by monopolists.
Jackson Walker’s attorneys stand ready to assist in any antitrust and competition-related issues that arise during these difficult times.
Edwin Buffmire represents clients in antitrust, class action, trade secret, and other complex and sensitive disputes in Texas and across the nation. He has built successful strategies for clients in a variety of industries, including obtaining dismissals for insurers in three class actions, defending an energy client against allegations of anticompetitive conduct in the natural gas industry, securing two full defense verdicts at trial for a securities brokerage firm against RICO claims, and defending media clients against a putative nationwide class asserting conspiracy allegations.
Elizabeth W. Pittman is an attorney in the litigation section of Jackson Walker’s Dallas office. Elizabeth was a Summer Associate with the Firm in 2017 and 2018, when she worked in both the corporate and litigation departments to assist in the creation and termination of various entities and compliance with SEC guidelines. Elizabeth also gained experience in handling antitrust litigation matters, as well as conducted research and drafted memoranda on the enforceability of non-compete covenants.
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