Senior DOJ official: FTC and DOJ to open inquiry to consider new guidance on collaboration among competitors
TL;DR
The FTC and DOJ are launching an inquiry to develop new guidance on competitor collaborations, following the 2024 withdrawal of outdated antitrust guidelines. This aims to address modern business practices like AI and algorithmic pricing, but businesses face uncertainty until updated rules are issued.
Senior DOJ official: FTC and DOJ to open inquiry to consider new guidance on collaboration among competitors
FTC and DOJ Announce Inquiry into New Guidance for Competitor Collaborations
In a recent statement, a senior official at the U.S. Department of Justice (DOJ) confirmed that the Federal Trade Commission (FTC) and DOJ will initiate an inquiry to evaluate the need for updated guidance on collaborations among competitors. This development follows the agencies' 2024 decision to withdraw the longstanding Antitrust Guidelines for Collaborations Among Competitors, which had provided a framework for assessing antitrust risks in joint ventures and horizontal agreements since 2000.
The 2024 withdrawal cited concerns that the guidelines had become outdated, failing to address modern business practices such as algorithmic pricing, artificial intelligence, and vertical integrations. Agencies emphasized their intent to analyze competitor collaborations on a case-by-case basis under existing antitrust laws, though the absence of clear guidance has created uncertainty for businesses. The FTC's vote to withdraw the guidelines was split 3-2, with Commissioners Andrew Ferguson and Melissa Holyoak opposing the move, arguing that businesses now lack clarity without replacement rules.
The upcoming inquiry signals a potential shift in enforcement approach. While the agencies have not indicated specific timelines or proposals, the review could address gaps left by the 2024 withdrawal and prior revocations of "safe harbor" policies in 2023. Businesses are advised to consult legal counsel to navigate antitrust risks under current statutes and case law.
With the FTC and DOJ under new leadership following the 2024 election, the inquiry may influence future enforcement priorities. However, companies should prepare for continued scrutiny of competitor collaborations, particularly in sectors involving emerging technologies or concentrated markets. The outcome of this review remains uncertain, but the agencies' focus on case-specific evaluations is likely to persist in the interim.
Morgan Lewis, December 2024: Morgan Lewis, December 2024
