In brief
On December 11, 2024, the US Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) announced the withdrawal of the 2000 Antitrust Guidelines for Collaborations Among Competitors. These guidelines outlined the agencies’ views on how competitor collaborations should be analyzed under the antitrust laws and provided “safety zones” for certain types of collaborations that the agencies stated would not be subject to challenge.
The FTC vote to withdraw the guidelines was 3-2, with the two Republican commissioners writing dissenting statements criticizing the FTC’s Democratic leadership for the timing of its decision—noting the upcoming change of administration and the lack of action for the preceding ~four years. As stated by Commissioner Ferguson, who President-elect Donald Trump announced as his selection to be the new FTC Chair, “the time for the Biden-Harris Commission to conduct such guidance review is over. Last month, the American people elected a new President. Now is the time to facilitate an orderly transition.”
Key takeaways
- The DOJ and FTC stated in a joint press release that the guidelines “no longer provide reliable guidance about how enforcers assess the legality of collaborations involving competitors.”
- No further details or replacement guidelines were provided. Instead, DOJ and FTC called on businesses to “review the relevant statutes and caselaw” if they pursue competitor collaborations.
- Commissioner Holyoak, the other Republican commissioner, criticized the withdrawal for failing to replace or “even intimate[] plans for future replacement” of these guidelines and creating business uncertainty.
- After the Trump administration gets new leadership confirmed to the DOJ and FTC, which may not be until the summer or later, the agencies could reinstate the guidelines or publish updated guidelines.
- In the meantime, businesses considering competitor collaborations should proceed with caution.
In more detail
In April 2000, DOJ and FTC issued the Competitor Collaboration Guidelines which were “intended to explain how the agencies analyze certain antitrust issues raised by collaborations among competitors.”1 The goal was to “enable businesses to evaluate proposed transactions with greater understanding of possible antitrust implications, thus encouraging procompetitive collaborations, deterring collaborations likely to harm competition and consumers, and facilitating the agencies’ investigations of collaborations.” These guidelines also provided “safety zones” that set out criteria under which the agencies would not challenge certain kinds of collaborations, including safety zones for competitor collaborations in general and research and development collaborations. The agencies have withdrawn other “safety zone” guidance during the Biden administration.2
The DOJ and FTC’s joint withdrawal statement asserts that the guidelines are outdated and asserts they are no longer reliable because:3
- They rely on “outdated and withdrawn policy statements.”
- They “risk creating safe harbors that have no basis in antitrust statutes.”
- They rely on “outdated analytical methods” that do not capture “advances in computer science, business strategy, and economic disciplines” that enforcers use to assess collaborations.
- They do not cover the competitive impacts “of modern business combinations and rapidly changing technologies such as artificial intelligence, algorithmic pricing models, vertical integration, and roll ups.”
- They do not reflect The Supreme Court and Federal Courts of Appeals significant cases addressing collaboration decided since the guidelines were issued.
In a dissenting statement, Commissioner Holyoak criticized the withdrawal for “leav[ing] businesses grasping in the dark” by failing to “provid[e] any replacement guidance, or even intimat[e] plans for future replacement.”4 Commissioner Bedoya’s statement in support of the withdrawal disagreed with Commissioner Holyoak because the joint withdrawal statement “identifies relevant precedent” and “encourages businesses contemplating collaboration to ‘review the relevant statutes and caselaw to assess whether a collaboration would violate the law.'”5 Commissioner Holyoak strongly opposed Commissioner Bedoya’s argument because “it assumes (1) that all businesses have antitrust lawyers on speed dial and (2) that all the Commission’s guidance documents are unnecessary . . . because businesses always have statutes and caselaw that they can review.” Commissioner Holyoak added that she disagrees with both premises and she “suspect[s] Commissioner Bedoya does as well.”
Commissioner Ferguson similarly criticized the current FTC leadership’s decision to withdraw the guidelines “a mere 40 days before the country inaugurates a new President.” While agreeing the Commission should “from time-to-time revisit its nonbinding guidance,” he argued that Commission had missed its opportunity to do so in light of the recent election and that the Commission should instead focus on “facilitat[ing] an orderly transition.”6 In her dissenting statement, Commissioner Holyoak echoed this sentiment stating, “[t]he Majority had four years to address its concerns with the guidelines—now is not the time.” Commissioner Bedoya responded to these criticisms in his statement declaring, “We are not on vacation. The American people expect their government to keep working for them even in periods of transition.”
In light of the contentious nature of the withdrawal, made on party lines, it is possible that the guidelines will be reinstated once the nominations for DOJ and FTC leadership by the Trump administration are confirmed. Alternatively, the agencies could use the withdrawal as an opportunity to issue new guidance. Commissioner Bedoya welcomed the idea of issuing updated guidance stating that he “look[s] forward to working with the new administration as they review the evolving jurisprudence on competitor collaborations and issue new guidance for the business community.”
Until antitrust leadership under the new administration is established and can provide guidance on competitor collaborations, businesses that contemplate collaborating with competitors should proceed with caution. We will continue to monitor developments in this area.
1 Antitrust Guidelines for Collaborations Among Competitors, U.S. DOJ & FTC (April 2020), https://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-among-competitors/ftcdojguidelines-2.pdf.
2 United States: DOJ Withdraws “Safety Zones” for Information Exchanges, BAKER MCKENZIE (Feb. 8, 2023), https://insightplus.bakermckenzie.com/bm/antitrust-competition_1/united-states-doj-withdraws-safety-zones-for-information-exchanges.
3 Justice Department and Federal Trade Commission Withdraw Guidelines for Collaboration Among Competitors, U.S. DOJ & FTC (December 11, 2024), https://www.ftc.gov/legal-library/browse/withdrawal-guidelines-collaboration-among-competitors.
4 Dissenting Statement of Commissioner Melissa Holyoak Withdrawal of 2000 Antitrust Guidelines for Collaboration Among Competitors, Commission File No. V250000 (Dec. 11, 2024), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissioner-melissa-holyoak-regarding-withdrawal-2000-antitrust-guidelines.
5 Statement of Commissioner Alvaro M. Bedoya Regarding the Withdrawal of the Antitrust Guidelines for Collaborations Among Competitors Matter Number V250000 (Dec 11, 2024) https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/statement-commissioner-alvaro-m-bedoya-regarding-withdrawal-antitrust-guidelines-collaborations.
6 Dissenting Statement of Commissioner Andrew N. Ferguson Regarding the Withdrawal of the Antitrust Guidelines for Collaborations Among Competitors Matter Number V250000 (Dec. 11, 2024), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissioner-andrew-n-ferguson-regarding-withdrawal-antitrust-guidelines.
