The U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) jointly announced a request for public comment concerning new antitrust guidelines for collaborations among competitors. The previous guidelines, the 2000 Antitrust Guidelines for Collaborations Among Competitors (the 2000 Collaboration Guidelines) were withdrawn in 2024, leaving no clear guidance in their place.
Competitor collaborations and joint ventures have long been scrutinized under the antitrust laws for their potential impact on competition and in some instances, alleged violations of antitrust laws. The 2000 Collaboration Guidelines provided companies a framework under which to analyze certain relationships with competitors.
As we previously reported, the 2000 Collaboration Guidelines were withdrawn, in part, because of the belief that the increase in the use of novel technologies in connection with competitor collaborations left the over 20-year-old guidelines unable to adequately assess the potential legality of competitor relationships. At the time of the withdrawal, the DOJ and FTC said that “while some specific aspects of the Collaboration Guidelines may accurately reflect that state of the law, the Collaboration Guidelines no longer provide reliable guidance to the public about how enforcers assess the legality of collaborations involving competitors.” Specifically, the 2000 Collaboration Guidelines did not assess the impact on competitor collaborations of artificial intelligence, algorithmic pricing models and data sharing. If new guidelines are adopted, they would be expected to address these issues, among others.
Acting Assistant Attorney General Omeed A. Assefi of the DOJ Antitrust Division, emphasized that “[p]rocompetitive collaborations are not only permissible but also encouraged in a complex and dynamic economic environment.” Assefi also said that “[r]eplacing the withdrawn guidelines is key to promoting certainty, allowing American businesses to work together effectively and lawfully, and enabling the private antitrust bar to enhance compliance in this area.”
Current FTC Chairman Andrew Ferguson, who had spoken out against the former administration’s withdrawal of the 2000 Collaboration Guidelines, stated that “[i]n an ever-changing economy, businesses need transparency and predictability from enforcers more than ever,” and “[t]hese times may require the federal government to update its guidelines.”
Enforcers are accepting comments for 60 days and are asking for input on what should be addressed in any new guidelines.