The Justice Department’s Antitrust Division and the Federal Trade Commission jointly announced on December 11 the withdrawal of the Antitrust Guidelines for Collaboration Among Competitors (“Collaboration Guidelines”), long-standing guidance on competitor collaborations. The agencies did not update the Collaboration Guidelines, but rather withdrew them with no replacement.
Issued in April 2000, the Collaboration Guidelines set forth the agencies’ views on how competitor collaborations should be analyzed under the antitrust laws and carved out criteria for “safety zones” for certain types of competitor collaborations that the agencies would not challenge.
In their joint announcement, the agencies stated that in the 24 years since the Collaboration Guidelines were issued, “many significant cases addressing collaborations involving competitors” have been decided by the Supreme Court and federal courts of appeals. Because the Collaboration Guidelines “do not reflect this evolution,” they “no longer provide reliable guidance” and businesses should “review the relevant statutes and caselaw to assess whether a collaboration would violate the law,” according to the agencies. The joint statement does not provide any details as to any particular cases that the agencies contend changed the law or impact their guidance. Under the jurisprudence over the last two decades, however, many of the core principles on which the Collaboration Guidelines are based remain good law.
Given the 3-2 vote along party lines to withdraw the Collaboration Guidelines and statements from the dissenting Commissioners criticizing the withdrawal, it is possible that the Collaboration Guidelines may be reinstated once DOJ and FTC nominees are confirmed in the coming Trump administration. Our antitrust team will continue to monitor developments with respect to competitor collaborations and other antitrust developments.
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