DOJ and FTC Withdraw Guidelines for Collaborations Among Competitors

The Justice Department’s Antitrust Division and the Federal Trade Commission (Agencies) announced on Dec. 11, 2024, that they have withdrawn the Antitrust Guidelines for Collaborations Among Competitors (Guidelines) issued in April 2000.

In an accompanying statement, the Agencies explained why they were withdrawing the Guidelines:

• Since the Guidelines were issued, the Supreme Court and federal courts of appeals have decided significant cases addressing collaborations involving competitors. These cases provide more up-to-date guidance as to the proper interpretation and application of Section 1 of the Sherman Act, and they are not reflected in the Guidelines^[1]

• The Guidelines rely, in part, on outdated and withdrawn policy statements, including the 1992 and 1997 Merger Guidelines, the 1993 Statements of Antitrust Enforcement Policy in Health Care and the 1995 Antitrust Guidelines for the Licensing of Intellectual Property

• The Guidelines risk creating safe harbors that have no basis in federal antitrust statutes. The Guidelines included two safety zones: a general safety zone under which, absent extraordinary circumstances, the Agencies would not challenge a competitor collaboration when the market shares of the collaboration and its participants collectively accounted for no more than 20% of each relevant market in which competition might be affected, and a safety zone for certain research and development collaborations

• The Guidelines rely on outdated analytical methods that fail to capture advances in computer science, business strategy and economic disciplines that help enforcers assess the competitive implications of corporate collaborations

• The Guidelines fail to address the competitive implications of modern business combinations and rapidly changing technologies, such as artificial intelligence, algorithmic pricing models, vertical integration and roll-ups.

The withdrawal does not impact other guidance documents, such as the Agencies’ policy statement on the sharing of cybersecurity information.

Further, the withdrawal statement does not prescribe how the Agencies will analyze antitrust issues raised by collaborations going forward.

The withdrawal was approved by the FTC in a 3-to-2 vote. Commissioners Melissa Holyoak and Andrew Ferguson dissented. Commissioner Holyoak stated that withdrawing the Guidance “without providing any replacement guidance, or intimating plans for future replacement, leaves businesses grasping in the dark.” In addition, both dissenters expressed the view that, putting aside whether the Guidelines should be withdrawn, this was not the time to be doing so given the upcoming change in administration.

Just recently, Commissioner Ferguson was appointed by President-Elect Trump to replace outgoing Chairperson Lina Khan.

^[1] The Agencies specifically identify NCAA v. Alston, 594 U.S. 69, 88-92 (2021); American Needle Inc. v. NFL, 560 U.S. 183, 191, 202 (2010); Texaco Inc. v. Dagher, 547 U.S. 1, 6 (2006); Deslandes v. McDonald’s USA, LLC, 81 F.4th 699, 702 (7th Cir. 2023), cert. denied, 144 S. Ct. 1057 (2024); and United States v. American Airlines Grp.,— F.4th —, 2024 WL 4716418 (1st Cir. 2024).