Takeaways From DOJ, FTC End to Collaboration Guidelines

By: Amy N. Vegari & Kate Ross (Patterson Belknap)

In this blog post, authors Amy N. Vegari & Kate Ross (Patterson Belknap) examine the Federal Trade Commission and the U.S. Department of Justice Antitrust Division’s decision on Dec. 11 to withdraw the antitrust guidelines for competitor collaborations.

Originally issued in April 2000, these guidelines provided an analytical framework for evaluating collaborative agreements between actual or potential competitors under Section 1 of the Sherman Act. While recognizing that horizontal agreements could pose competitive risks, the guidelines also acknowledged that “[i]n order to compete in modern markets, competitors sometimes need to collaborate.” However, in their joint announcement, the agencies declared the guidelines outdated and unreliable, citing inconsistencies with recent case law, reliance on withdrawn policy statements, and the potential creation of unwarranted safe harbors not grounded in federal antitrust law. The agencies also referenced key Section 1 cases, including two from circuit courts, signaling their intent to continue the Biden administration’s heightened enforcement approach. This includes stricter application of the ancillary restraints doctrine, broader scrutiny of markets where anticompetitive collaborations may occur—especially labor markets—and the elimination of safe harbors previously provided by the guidelines.

Alongside the withdrawal, the agencies clarified the legal standards governing competitor collaborations and emphasized that these standards extend beyond the markets explicitly covered by the former guidelines…

CONTINUE READING…