On Tuesday, March 24, 2020, the Department of Justice Antitrust Division and the Federal Trade Commission’s Bureau of Competition issued new guidance to health care companies looking to collaborate in the fight against COVID-19. According to the joint statement,1 the Division and the Bureau are seeking to help collaborators contribute to that effort by:
- Accelerating the Division’s Business Review Process and the Bureau’s Advisory Opinion Process to provide evaluations of proposed conduct within 7 calendar days, rather than several months;
- Expediting processing of filings related to joint ventures under the National Cooperative Research and Production Act;
- Recognizing that exigent circumstances may allow temporary combinations of production, distribution and service networks; and
- Identifying examples of conduct that is “typically procompetitive,” including collaborating on research and development, sharing technical know-how (as opposed to information on prices and output), jointly developing best practices for patient management, entering joint purchasing arrangements intended to increase procurement efficiency, and jointly lobbying the government regarding the use of emergency powers.
The agencies warned, however, that the ongoing pandemic is not an excuse to violate the antitrust laws. The Joint Statement provides that the Division and the Bureau will continue to pursue civil and criminal violations of the antitrust laws, including agreements to increase prices, lower wages, decrease output, reduce quality, rig bids, or allocate markets, or efforts by monopolists to use their market power to engage in exclusionary conduct.
The guidance builds on several other changes the enforcement agencies have put in place since the epidemic began. On March 9, the Department of Justice warned that its newly formed Procurement Collusion Strike Force will “be on high alert for collusive practices in the sale of [health] products to federal, state and local agencies.”2 On March 16, the Antitrust Division announced changes to its civil merger investigation process, delaying some proceedings and allowing others to occur remotely.3 On March 17, the FTC announced changes to its merger processes as well.4
In this challenging time, our focus should be on addressing the global crisis as fast as possible, to protect health and safety, and to get our economy back on track.
1 “Joint Antitrust Statement Regarding COVID-19” (March 24, 2020), available at https://www.ftc.gov/system/files/documents/public_statements/1569593/statement_on_coronavirus_ftc-doj-3-24-20.pdf; see also “The Justice Department and the Federal Trade Commission Announce Expedited Antitrust Procedure and Guidance for Coronavirus Public Health Efforts” (March 24, 2020) available at https://www.justice.gov/opa/pr/justice-department-and-federal-trade-commission-announce-expedited-antitrust-procedure-and.
2 “Justice Department Cautions Business Community Against Violating Antitrust Laws in the Manufacturing, Distribution, and Sale of Public Health Products” (March 9, 2020), available at https://www.justice.gov/opa/pr/justice-department-cautions-business-community-against-violating-antitrust-laws-manufacturing.
3 “Justice Department Announces Antitrust Civil Process Changes for Pendency of COVID-19 Event” (March 16, 2020), available at https://www.justice.gov/opa/pr/justice-department-announces-antitrust-civil-process-changes-pendency-covid-19-event.
4 “COVID-19 - Guidance for Filing Parties” (March 17, 2020), available at https://www.ftc.gov/enforcement/premerger-notification-program/guidance-filing-parties.
