Eerie Exchanges? US Antitrust Agencies Renew Focus on Information Exchange Practices

By: John Eichlin, Douglas Tween & Ashley Latham (Linklaters)

U.S. antitrust enforcers at the Department of Justice (DOJ) and Federal Trade Commission (FTC) have increasingly focused on scrutinizing information-sharing practices, as reflected in recent enforcement actions and policy statements. In a notable development, the DOJ recently expressed its stance in a Statement of Interest supporting private plaintiffs in a case involving information sharing in pork production, an area where the DOJ has also been actively involved.

Through these initiatives, the Agencies have begun to move away from long-standing guidance on how companies can share information without raising antitrust concerns. While information sharing has traditionally been treated as evidence of anticompetitive agreements, the DOJ has now been pushing to expand antitrust law to include standalone theories of harm related to data sharing. Their attention is increasingly directed at data vendors, software providers, and consultants who facilitate the aggregation and distribution of competitive information.

Although some principles from previous guidance still apply, certain information-sharing practices—especially those involving third parties or newer technologies—pose an elevated antitrust risk. This trend signals a potential crackdown on practices that were previously deemed safer. Keep reading for more on this chilling development, featured in our third annual Halloween special!

Safe Harbors: A Thing of the Past
In 2023, the DOJ and FTC rescinded three policy statements that had created an antitrust “safety zone” for information sharing. Under these guidelines, information exchanges were considered low-risk if they were (1) handled by an independent third party, (2) involved data at least three months old, and (3) included contributions from at least five participants, with no single contributor’s data representing more than 25% of any aggregated statistic. Although these guidelines were originally developed for the healthcare sector, they were widely relied upon across various industries. With the rescission of these statements, companies now face heightened uncertainty around information-sharing practices.

CONTINUE READING…