20-4 AmerisourceBergen Corporation (“AmerisourceBergen”)

U.S. DEPARTMENT OF JUSTICE
Antitrust Division
MAKAN DELRAHIM
Assistant Attorney General
Main Justice Building
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
(202) 514-2401 / (202) 616-2645 (Fax)
April 20
, 2020
John G. Chou
Executive Vice President
Chief Legal Officer and Secretary
AmerisourceBergen Corporation
227 Washington Street
Conshohocken, PA 19428
Re: AmerisourceBergen Corporation Business Review Request Pursuant to
COVID-19 Expedited Procedure
Dear Mr. Chou:
This letter responds to your request on behalf of AmerisourceBergen Corporation
(“AmerisourceBergen”) for the issuance of a business review letter under the Department
of Justice’s (the “Department”) Business Review Procedure, 28 C.F.R. §50.6. Specifically,
the Department understands that AmerisourceBergen’s request is made under the
expedited, temporary review procedure as detailed in the Joint Antitrust Statement
Regarding COVID-19 (the “Joint Statement”) dated March 2020.
1
As indicated in the Joint
Statement, the Department’s statement of its current enforcement intentions as set out in
this letter will be in effect for one year from the date of this letter. AmerisourceBergen may
subsequently request, using this expedited, temporary procedure, that the Department
reiterate its current enforcement intentions, if further time is necessary to respond to the
unprecedented COVID-19 pandemic and its aftermath.
You have requested a statement of the Department’s current antitrust enforcement
intentions with respect to your efforts to identify global supply opportunities, ensure
product quality, and facilitate product distribution to the most imperiled communities of
medications and other healthcare supplies to treat COVID-19 patients (“Proposed
Conduct”).
2
The Department understands that the Proposed Conduct relates to
1
Dep’t of Justice & Fed. Trade Comm., Joint Antitrust Statement Regarding COVID-19 (Mar. 2020),
https://www.justice.gov/atr/joint-antitrust-statement-regarding-covid-19 [hereinafter Joint Statement].
2
Letter from John G. Chou, AmerisourceBergen Corporation, to the Honorable Makan Delrahim, Assistant
Attorney General for Antitrust, U.S. Dep’t of Justice (April 14, 2020) [hereinafter Request Letter] at 2.

John G. Chou
April 19, 2020
2
AmerisourceBergen’s response to the unprecedented COVID-19 pandemic and its
aftermath and is “focused on facilitating the government’s efforts to guide medications and
other healthcare supplies to the places where they are needed most.”
3
The Department
likewise understands that AmerisourceBergen is responding cooperatively to requests from
the U.S. Government, as part of a collaborative process with government personnel and
consultants, in which the Department’s Antitrust Division is regularly involved.
4
The
Department also understands that the Proposed Conduct significantly overlaps with the
conduct described in the request letter from McKesson Corp., Cardinal Health Inc., Henry
Schein, Inc., Medline Industries, Inc., and Owens & Minor, Inc. (collectively “PPE
Distributors”) and the Department’s subsequent Business Review Letter to the PPE
Distributors dated April 4, 2020.
5
Based on the information and representations you
provided, the direct and continuing observations of Antitrust Division personnel, and after
an expedited review, the Department presently does not intend to challenge
AmerisourceBergen’s efforts to identify global supply opportunities, ensure product
quality, and facilitate product distribution of medications and other healthcare supplies for
the reasons explained below.
I. Background
AmerisourceBergen is a U.S. distributor of medications and other healthcare
products. Recognizing challenges presented by the COVID-19 pandemic to the global
supply of certain medical products, U.S. Government agencies, including the Federal
Emergency Management Agency (“FEMA”), the Defense Logistics Agency, and the
Department of Health and Human Services (“HHS”), have asked AmerisourceBergen and
other distributors to use their industry expertise and contacts to address supply chain
shortages and direct medical supplies to the areas in greatest need.
This request arises from exigent circumstances created by the rapid spread of the
dangerous and highly infectious COVID-19 virus.
6
On March 13, 2020, President Donald
J. Trump declared a national emergency under the National Emergencies Act
7
and issued
a nationwide emergency determination under the Robert T. Stafford Disaster Relief and

3
Id.
4
The Department understands that some aspects of the proposed conduct already have been underway to
facilitate the delivery of critical equipment into the United States. Although the Department typically does
not review ongoing conduct, given the President’s declaration of a national emergency and the current
exigencies, I have determined that in these circumstances it is appropriate to consider the request.
5
Letter from the Honorable Makan Delrahim, Assistant Attorney General for Antitrust, U.S. Dep’t of
Justice to Lori A. Schechter, McKesson Corp., Jessica L. Mayer, Cardinal Health, Inc., Michael S. Ettinger,
Henry Schein, Inc., Alex Liberman, Medline Indus., Inc., & Nicholas J. Pace, Owens & Minor, Inc. (Apr.
4, 2020), available https://www.justice.gov/atr/page/file/1266511/download [hereinafter, “PPE Distributor
BRL”].
6
See also further discussion of the exigent circumstances regarding the response to the COVID-19 virus in
the PPE Distributors BRL.
7
Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020).

John G. Chou
April 19, 2020
3
Emergencies Assistance Act.
8
The President also encouraged all governors and tribal
leaders to consider submitting requests for declaration of a “major disaster” under the
Stafford Act. As of April 16, major disasters have been declared in all 50 states.
9
By that
date, more than 670,000 Americans had been infected with the virus and more than 33,000
had died.
10
In light of this national emergency, the Federal Trade Commission and the
Antitrust Division of the Department of Justice have recognized that coordinated efforts
among government agencies and private businesses, “limited in duration and necessary to
assist patients, consumers, and communities affected by COVID-19 and its aftermath,”
may be “a necessary response to exigent circumstances that provide Americans with
products or services that might not be available otherwise.”
11

Addressing potential disruptions to the global medical supply is central to the U.S.
Government’s effort to save American lives and livelihoods from the destructive effects of
COVID-19. On March 18, 2020, President Donald J. Trump issued Executive Order 13909,
“Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of
COVID–19,” which declared it “critical” that “all health and medical resources needed to
respond to the spread of COVID-19 are properly distributed to the Nation’s healthcare
system and others that need them most.”
12
Consistent with that aim, the President invoked
the Defense Production Act and delegated authority under the Act to the Secretary of HHS
“to determine, in consultation with ... the heads of other executive departments and
agencies as appropriate, the proper nationwide priorities and allocation of all health and
medical resources, including controlling the distribution of such materials (including
applicable services) in the civilian market, for responding to the spread of COVID-19
within the United States.”
13
On March 26, 2020, President Donald J. Trump issued another
executive order stating that “it is the policy of the United States that health and medical
resources needed to respond to the spread of COVID–19 ... are not hoarded” and
delegating additional authority to HHS.
14

An important component of the effort to ensure an adequate supply of medical
resources is the Strategic National Stockpile (the “Stockpile”). Authorized by the Public
Health Service Act,
15
the role of the Stockpile is to supplement state and local supplies

8
Letter from President Trump to Chad Wolf, Acting Sec’y, Dep’t of Homeland Sec., Steven Mnuchin,
Sec’y, Dep’t of Treasury, Alex Azar II, Sec’y, Dep’t of Health and Human Servs., and Pete Gaynor,
Admin’r, Fed. Emergency Mgmt. Agency (Mar. 13, 2020), https://www.whitehouse.gov/wp-
content/uploads/2020/03/LetterFromThePresident.pdf.
9
Fed. Emergency Mgmt. Agency, Disasters, https://www.fema.gov/disasters (last visited Apr. 16, 2020).
10
Johns Hopkins University, Coronavirus COVID-19 Global Cases by the Center for Systems Science and
Engineering, https://coronavirus.jhu.edu/map html (last visited Apr. 16, 2020).
11
Id.
12
Exec. Order No.13,909, 85 Fed. Reg. 16,227 (Mar. 18, 2020).
13
Id.
14
Exec. Order No. 13,910, 85 Fed. Reg. 17,001 (Mar. 23, 2020).
15
42 U.S.C. § 247d-6b.

John G. Chou
April 19, 2020
4
during public health emergencies and distribute stockpiled products, such as
pharmaceuticals, medical devices, and test kits, where they are needed most.
16
In carrying
out that mission, the Stockpile coordinates information sharing with state and local
governments to formulate an efficient response and works with public and private sector
partners to support optimal distribution of medical countermeasures.
17
AmerisourceBergen
intends to work with FEMA, HHS, and other federal agencies to distribute medications and
other health care products from the Stockpile to COVID-19 hotspots.
FEMA has broad authority to implement these policies.
18
Under the Stafford Act,
in any “emergency” or “major disaster,” the President may “coordinate all disaster relief
assistance (including voluntary assistance) provided by federal agencies, private
organizations, and State and local governments.”
19
By executive order, this power has been
delegated to the Administrator of FEMA.
20
Accordingly, the Stafford Act authorizes the
Administrator to enter into voluntary agreements with private companies to ensure the
distribution of medical resources to the areas of the country that need it most. The
Homeland Security Act of 2002, moreover, directs that “[t]o the maximum extent
practicable, the Secretary [of Homeland Security, who oversees FEMA,] shall use national
private sector networks and infrastructure for emergency response to ... major disasters”
21

and that “in order to further the policy of the United States to avoid competing com-
mercially with the private sector, the Secretary should rely on commercial sources to
supply the goods and services needed by the Department.”
22

II. AmerisourceBergen’s Efforts to Identify Global Supply Opportunities, Ensure
Product Quality, and Facilitate Product Distribution of Medications and Other
Healthcare Supplies
All facts set forth in this section regarding AmerisourceBergen’s efforts to identify
global supply opportunities, ensure product quality, and facilitate product distribution of
medications and other healthcare supplies to treat COVID-19 patients are based on your

16
https://www.phe.gov/about/sns/Pages/default.aspx
17
https://www.phe.gov/about/sns/Pages/about.aspx; see also 42 U.S.C. § 247d-6b(a)(3)(E) (providing that
the Secretary of HHS “shall . . . devise plans for effective and timely supply-chain management of the
stockpile, in consultation with the Director of the Centers for Disease Control and Prevention, the Assistant
Secretary for Preparedness and Response, the Secretary of Transportation, the Secretary of Homeland
Security, the Secretary of Veterans Affairs, and the heads of other appropriate Federal agencies; State,
local, Tribal, and territorial agencies; and the public and private health care infrastructure, as applicable”);
§ 247d-6b(a)(3)(F) (providing that the Secretary of HHS “shall . . . deploy the stockpile as required by the
Secretary of Homeland Security to respond to an actual or potential emergency”).
18
See 42 U.S.C. §§ 5170, 5192-93.
19
42 U.S.C. §§ 5170a, 5192.
20
Exec. Order No. 12,148, 44 Fed. Reg. 43,239 (July 4, 1979), Exec. Order No. 12,673, 54 Fed. Reg.
12,571 (Mar. 23, 1989).
21
6 U.S.C. § 321h
22
6 U.S.C. § 321i.

John G. Chou
April 19, 2020
5
representations to the Department and publicly available sources. Moreover, just as with
the PPE Distributors, Antitrust Division attorneys participate regularly in meetings related
to these efforts, and the facts set forth here are consistent with their observations.
AmerisourceBergen’s proposed collaboration with and at the direction of FEMA,
HHS, and other government entities to identify global supply opportunities, ensure product
quality, and facilitate product distribution of medications and other healthcare supplies to
treat COVID-19 patients will take place under much of the same framework as that which
applied to the PPE Distributors. AmerisourceBergen’s Proposed Conduct includes
collaborations involving the PPE Distributors under this framework.
23
Because of this,
there is substantial overlap between AmerisourceBergen’s Proposed Conduct and conduct
addressed in the Department’s Business Review Letter to the PPE Distributors.
24
In
particular, AmerisourceBergen proposes to collaborate with and at the direction of the U.S.
Government to:
a) Help FEMA, HHS, and foreign governments address bottlenecks with our existing
foreign suppliers;
b) Help FEMA and HHS identify and qualify new sources of supply;
c) Help FEMA and HHS identify and monitor areas of increased demand for, and
potential shortages of, medications and other healthcare supplies;
d) Help expedite distribution of medications and other healthcare supplies, including
medications from the Strategic National Stockpile, to FEMA-designated COVID-
19 hotspots;
e) Provide FEMA and HHS with data necessary to do the above;
f) Provide FEMA and HHS with claims data and data otherwise requested by FEMA;
g) Engage in related activities to source and distribute medications and other
healthcare supplies as directed by FEMA, HHS, or additional government
agencies.
25

Just as the same framework dictates specific proposed collaborations, so too does
it require AmerisourceBergen to commit to the same safeguards as the PPE Distributors.
26

AmerisourceBergen has committed to follow the following safeguards at all times,

23
See PPE Distributors BRL.
24
Id.
25
Request Letter, supra note 2, at 3–4. The Department understands, consistent with safeguard (c) on the
following page, that sharing of competitively sensitive information is proposed to be bilateral with the
government and its agents, and competitively sensitive information will not be shared between competitors.
Further, in contrast to the conduct proposed by the PPE Distributors, AmerisourceBergen will not help
FEMA and HHS with any price-specific terms. Compare PPE Distributors BRL at 3.
26
Compare PPE Distributors BRL at 6.

John G. Chou
April 19, 2020
6
including during those limited times when AmerisourceBergen will need to engage in the
Proposed Conduct when U.S. Government representatives are not participating:
27

a) Any collaboration between AmerisourceBergen and other distributors is
specifically intended to further U.S. government policy and efforts;
b) AmerisourceBergen is not using any collaboration to increase prices, reduce output,
reduce quality, or otherwise engage in COVID-19 profiteering;
c) If FEMA, HHS, other government entities, or their consultants and designees
request any competitively sensitive information from AmerisourceBergen,
AmerisourceBergen will
make all reasonable efforts to share this information only with the requesting
government agency, and not with any other distributor or competitor;
d) AmerisourceBergen’s collaborations are limited to the time period necessary to
assist FEMA, HHS, and other government agencies in responding to COVID-19
shortages;
e) Upon resolution of the COVID-19-related disruptions and the disbanding of the
related U.S. Government response initiatives, AmerisourceBergen and other
distributors will formally dissolve their competitor collaboration and immediately
notify the Department, in writing;
f) AmerisourceBergen will commit to work with the Department to determine
appropriate sequestration of competitively sensitive material that was produced
during the collaboration period.
28

AmerisourceBergen implements its commitments to the specific collaborative
activities and safeguards listed above within initiatives organized and directed by FEMA,
HHS, other government entities, and their agents.
One initiative is the distribution of hydroxychloroquine from the Stockpile to health
care providers in areas of greatest need.
29
In this distribution initiative, AmerisourceBergen
and other distributors act as the U.S. Government’s distribution agents. The U.S.
Government will instruct AmerisourceBergen on the amount of hydroxychloroquine it will
receive and where the hydroxychloroquine is to be sent. The U.S. Government does not
inform AmerisourceBergen of its instructions to other distributors. The
hydroxychloroquine is donated, meaning the U.S. Government does not charge
AmerisourceBergen or other distributors for it. Further, AmerisourceBergen does not

27
AmerisourceBergen’s communications that do not have direct participation of U.S. Government
representatives are carried out with the intention and sole purpose of maximizing the effectiveness of the
response to the national health emergency created by the COVID-19 pandemic. For example, alignment on
data fields (but not the content of those fields), as well as the interpretation of things such as the FDA’s
Emergency Use Authorization (“EUA”), ensures consistency, and consistency increases effectiveness.
28
Request Letter, supra note 2, at 4.
29
The Department understands that other, additional medicines could eventually be added to this
distribution initiative.

John G. Chou
April 19, 2020
7
charge the U.S. Government for its distribution services, nor does AmerisourceBergen
charge the health care providers for the medicines that they receive. Recognizing the
extreme urgency of getting medicines to areas of greatest need, AmerisourceBergen, along
with other distributors, are serving as the U.S. Government’s distributors while
concurrently seeking to memorialize their role in a written agreement.
AmerisourceBergen is also complying with FEMA’s data gathering and data
analytics initiatives. The purpose of the data gathering initiative is to enable FEMA to
identify the medications critical to combating the unprecedented COVID-19 pandemic and
prevent or limit any shortages of such medications. FEMA issued RFIs to
AmerisourceBergen, as well as other distributors and manufacturers, to solicit this
information. AmerisourceBergen responded directly to FEMA for both RFIs.
AmerisourceBergen expects that its detailed responses will only be shared with FEMA and
its agents and that any discussion of RFI responses would be high-level and take place in
fora in which FEMA is both present and participating. FEMA’s data analytics initiative
relies on the foundation provided by its data gathering initiative. Its aim is to build a supply
chain control tower tool that will provide FEMA with a full picture of the pharmaceutical
supply chain, from manufacturing to deployment. Given the complexities and opacity of
pharmaceutical supply chains, distributors such as AmerisourceBergen provide the insight
and expertise essential for the successful functioning of such a tool. Under the current
exigent circumstances, AmerisourceBergen is complying with FEMA’s requests while
negotiating a data sharing agreement to protect the confidentiality of its data in parallel. In
that spirit, it is expected that the detailed output of the supply chain control tower tool will
only be accessed and used by FEMA, and that only high-level insights, such as the
identification of areas of need, will be shared with AmerisourceBergen and other
distributors.
In conclusion, AmerisourceBergen represents that its efforts to expedite and
increase distribution of medications and healthcare supplies are designed to combat and
alleviate the national health emergency caused by the COVID-19 pandemic. Under the
direction, guidance, supervision, and instruction of FEMA, HHS, other government
entities, and their agents, AmerisourceBergen is working with both federal and private
partners to ensure that needed medications and healthcare supplies move quickly and
efficiently to areas of greatest need during the COVID-19 crisis. As with the PPE
Distributors, in all other respects, AmerisourceBergen will continue to pursue its
independent business strategies as before. Consistent with this independent business
strategy, AmerisourceBergen’s collaboration is limited only to Coronavirus-related efforts
and will only last for as long as such efforts are necessary for the welfare of Americans.
III. Legal Framework & Analysis
a. Collaboration and Cooperation with Federal Agencies

John G. Chou
April 19, 2020
8
Conduct by federal agencies is immune from scrutiny under the antitrust laws.
30

Courts have extended this immunity to conduct by private parties when their conduct is
(i) “compelled by an agreement with a federal agency or a clearly defined federal
government policy” and (ii) “supervise[d]” by a federal agency.
31
The Department has also
indicated that it will not challenge conduct aimed at addressing COVID-19 and its
aftermath if it satisfies this standard. For example, the Department recently concluded that
conduct by the PPE Distributors ⸻ “pursuant to an agreement with [FEMA], supervised
by the agency, and in furtherance of the agency’s defined policy goals” ⸻ satisfied this
standard and therefore did not raise any antitrust concerns.
32

AmerisourceBergen intends to distribute certain medications from the Stockpile
“[a]t the direction of FEMA, HHS, and other government agencies . . . to FEMA-designated
COVID-19 hotspots.”
33
This conduct fits within the two-part framework described above.
First, while AmerisourceBergen does not have a formal contract with FEMA or HHS yet,
34

it will be acting at their direction in the context of a clearly defined federal program, i.e.,
distributing products from the Strategic National Stockpile during a national emergency.
35

Second, FEMA, HHS, and its agents “will be actively directing and supervising
Amerisource’s conduct.”
36
For example, based on AmerisourceBergen’s representations,
FEMA would decide where and how many products AmerisourceBergen can distribute ⸻
AmerisourceBergen is simply an instrumentality transporting products owned by the U.S.
Government to locations designated by the U.S. Government on terms dictated by the U.S.
Government. The Department is satisfied that this and similar conduct should not raise any
concerns under the antitrust laws.
AmerisourceBergen also intends to work with other firms in providing FEMA and
HHS with data, as “requested by FEMA,” to help the agencies “identify and qualify new
sources of supply,” “address bottlenecks with . . . existing foreign suppliers,” and “identify

30
Sea-Land Serv., Inc. v. Alaska R. R., 659 F.2d 243 (D.C. Cir. 1981); see also PPE Distributors BRL at 7
n.30 (noting, however, that “the Department stands ready to work with federal agencies to ensure their
efforts promote competition”).
31
PPE Distributors BRL at 7.
32
Id. at 8.
33
Id at 3.
34
AmerisourceBergen has indicated that it is seeking to enter such an agreement.
35
See, e.g., 42 U.S.C. § 247d–6b(a)(3)(E), (F), (G) (directing HHS to “devise plans for effective and timely
supply-chain management of the stockpile, in consultation with . . . the public and private health care
infrastructure”); 42 U.S.C. § 300hh-10(b)(5), (c)(3) (empowering HHS to “work[] with other relevant
Federal, State, local, Tribal, and territorial public health officials and private sector entities . . . including by
establishing methods to exchange critical information and deliver products consumed or used to preserve,
protect, or sustain life, health, or safety, and sharing of specialized expertise”); cf. Fuchs v. Rural Elec.
Convenience Co-op. Inc., 858 F.2d 1210, 1215 (7th Cir. 1988) (“The [government] may, and often must,
also turn to private actors to effect its policies. While the [government] itself is immune from any actions or
agreements which would violate the antitrust laws, its purposes would be thwarted if the instrumentalities
chosen to implement its policies could be held liable.”).
36
Request Letter at 5; see also PPE Distributors BRL at 8.

John G. Chou
April 19, 2020
9
and monitor areas of increased demand for, and potential shortages of, medications and
other healthcare supplies.”
37
To the extent this conduct does not fit within the framework
discussed above, it “may still offer unique benefits and therefore be consistent with the
antitrust laws.”
38
Among other things, helping the U.S. Government secure and distribute
medical supplies can “provide Americans with products or services that might not be
available otherwise more immediately, efficiently, and effectively than if firms worked on
their own or even bilaterally with [an] agency.”
39
Moreover, any risk of anticompetitive
harm is low given the involvement of FEMA and HHS and in light of various safeguards
to which AmerisourceBergen has committed.
40
The Department is therefore satisfied that
this and similar conduct ⸻ “at the request of FEMA, directed by the agency, and in
furtherance of the agency’s defined policy goals to address a national emergency ⸻ offers
unique procompetitive benefits under the exigent circumstances presented by COVID-19
that outweigh any hypothetical anticompetitive harm.”
41
The Department also recently
explained that sharing information “requested by [a federal agency] through bilateral
communications [with that agency]” does not raise antitrust concerns.
42
Thus, where
helping FEMA and HHS source supplies, address bottlenecks, or monitor shortages
involves AmerisourceBergen bilaterally sharing data with FEMA or HHS this conduct is
unlikely to raise concerns under the antitrust laws.
b. The Competitor Collaborations Regarding the Proposed Conduct
Likely Do Not Raise Competitive Issues
Although AmerisourceBergen has represented that the Proposed Conduct will be
“[a]t the direction of FEMA, HHS, and other government agencies,” it acknowledges that
discussions outside of FEMA’s presence may be necessary given “the fast-moving nature
of the COVID-19 crisis.”
43
The scope of this business review letter will therefore
encompass activities necessary to carry out directions from FEMA, HHS, or another U.S.
Government agency, even if they occur outside the presence of those agencies, so long as
the discussions abide by the safeguards discussed below.
According to AmerisourceBergen, these discussions will not include competitively
sensitive information.
44
AmerisourceBergen has also “commit[ted] to follow several
safeguards,” including limiting what information is exchanged and how long it will be

37
Request Letter at 3–4.
38
PPE Distributors BRL at 7–8.
39
Id. at 7 (internal quotation marks omitted); Request Letter at 5 (“AmerisourceBergen’s collaboration . . .
is necessary to allow us to offer medications and other healthcare supplies more quickly than otherwise
would be possible and to address scarcity.”).
40
See Section III(c).
41
PPE Distributors BRL at 9.
42
Id. at 8 (internal quotation marks omitted).
43
Request Letter at 4.
44
Id.

John G. Chou
April 19, 2020
10
exchanged or kept, to minimize the risk that its conduct might harm competition.
45
Thus,
under the Antitrust Guidelines for Collaborations Among Competitors issued jointly by the
Federal Trade Commission and the Department, AmerisourceBergen’s Proposed Conduct
does not involve appear to involve a per se violation of the antitrust laws such as price
fixing or market allocation.
46
Instead, the Proposed Conduct would likely be evaluated
based on the rule of reason.
47
In applying that framework, “[t]he central question is whether
the relevant agreement likely harms competition by increasing the ability or incentive
profitably to raise price above or reduce output, quality, service, or innovation below what
likely would prevail in the absence of the relevant agreement.”
48

The Department recently applied this same framework in evaluating the proposed
collaborations by the PPE Distributors responding to the COVID-19 pandemic under the
direction of FEMA. In doing so, the Department noted that their conduct made it possible
for the distributors “to bring life-saving goods faster to market than would be possible
absent the collaboration.”
49
The Department also concluded that the conduct there offered
“unusually strong” procompetitive benefits, including strengthening supply chains in ways
that could “save lives and limit the tremendous damage” caused by the COVID-19
pandemic. In balancing these benefits against the risk of harm to competition,
the Department concluded that the risk of harm was low because the distributors committed
to several safeguards against using the collaboration “to increase prices, reduce output,
reduce quality, or otherwise engage in COVID-19 profiteering.”
50

AmerisourceBergen represents that its Proposed Conduct offers similar
procompetitive benefits. For example, distributing medications or other medical supplies
from the Stockpile will help increase short-term supply at a time when these products are
needed most. Similarly, AmerisourceBergen’s data sharing will help FEMA and other
government agencies identify and combat potential pharmaceutical shortages.
The Proposed Conduct will therefore “allow [AmerisourceBergen] to offer medications
and other healthcare supplies more quickly than otherwise would be possible.”
51
In the
context of a nationwide pandemic, these benefits are “unusually strong.”
52

45
Id.
46
To the extent it does, “any determinations of prices, wages, output, quality, bids, or allocations will only
occur if at FEMA’s direction.” PPE Distributors BRL at 8; see also Section III(c).
47
PPE Distributors BRL at 8–9 (applying rule of reason treatment to similar conduct).
48
Fed. Trade Comm’n and U.S. Dep’t Of Justice, Antitrust Guidelines for Collaborations Among
Competitors at § 3.3 (2000), https://www.justice.gov/atr/page/file/1098461/download (“Competitor
Guidelines”).
49
PPE Distributors BRL at 9.
50
Id.
51
Request Letter at 5; see also Competitor Guidelines at § 2.1 (recognizing that “competitor collaborations
may enable participants to offer goods or services that are cheaper, more valuable to consumers, or brought
to market faster than would be possible absent the collaboration”).
52
PPE Distributors BRL at 9.

John G. Chou
April 19, 2020
11
AmerisourceBergen has also committed to safeguards that minimize any potential
harms to competition that might flow from its collaboration. For example, any competitor-
collaboration AmerisourceBergen pursues within the context of the Proposed Conduct will
be “specifically intended to further U.S. government policy and efforts.”
53

AmerisourceBergen will also not use this collaboration “to increase prices, reduce output,
reduce quality, or otherwise engage in COVID-19 profiteering.”
54
And it will limit the
information it shares with or seeks from competitors and then “sequestrat[e] . . .
competitively sensitive material that was produced during the collaboration period” once
the collaboration is over.
55
As the Department said previously, “[t]hese safeguards further
lower the risk that their legitimate collaborations would lead to unlawful price fixing, bid
rigging, market allocation, or otherwise anticompetitive acts.”
56
The same is true here.
Based on these representations and given the current circumstances, the
procompetitive benefits of the Proposed Conduct appear to far outweigh any potential
harm. Even so, the Department would be concerned if AmerisourceBergen used this
collaboration to engage in prohibited conduct “such as unlawful price fixing or directly
exchanging sensitive forward-looking competitive information.”
57
The Department has not
seen any evidence, however, that this is likely to occur. Indeed, given the unique facts and
circumstances here, such harm seems unlikely.
c. Other Antitrust Doctrines May Apply and Support the Proposed
Conduct
Other antitrust exemptions and immunities may apply to particular aspects of the
Proposed Conduct beyond those discussed above, similar to those the Department
previously found may apply to the PPE Distributors conduct. These exemptions and
immunities include the Noerr-Pennington exemption and implied immunity.
Under the Noerr-Pennington doctrine, collaborators may jointly petition
government entities to take particular actions, and even if such actions have anticompetitive
efforts, courts have conferred “petitioning immunity” upon the collaborators’ efforts to
induce the particular government actions.
58
To the extent the Proposed Conduct describes
AmerisourceBergen’s efforts to influence FEMA’s, HHS’s, or another governmental
agencies’ decisions regarding the U.S. Government’s policy of expediting health and
medical resources in response to COVID-19, such conduct would likely be covered by
Noerr-Pennington immunity. While some courts have recognized a commercial exception

53
Request Letter at 4.
54
Id.
55
Id.
56
PPE Distributors BRL at 10.
57
Id.
58
See generally 2-13 Antitrust Law Developments 13C and Areeda and Hovenkamp, supra, § 201-212.

John G. Chou
April 19, 2020
12
to Noerr-Pennington, “[a]ssuming that the government does in fact know about the
‘restraint’ at issue, Noerr immunity becomes increasingly appropriate as (a) the resulting
government decision reflects a policy choice rather than capitulation to the economic
pressure of the private firm; and (b) anticompetitive injury to others is caused by the
government decision rather than by the private restraint seeking to compel that decision.”
59

Particular activities within the Proposed Conduct may also benefit from implied
immunity under the antitrust laws. Courts may hold conduct immune from antitrust liability
where application of the antitrust laws would “disrupt” or be “repugnant” to the regulatory
scheme.
60
AmerisourceBergen’s Proposed Conduct appears to meet at least several of the
factors that the Supreme Court requires before finding conduct immune, such as FEMA’s
and HHS’s regulatory authority and direction under that authority. If particular activities
within the Proposed Conduct “would produce conflicting guidance, requirements, duties,
privileges, or standards of conduct” and the possible conflict is within an area that the
pandemic laws seek to regulate, then implied immunity may cover those activities.
61

IV. Conclusion
This letter is predicated on the accuracy of the information AmerisourceBergen has
provided. This letter expresses the Department’s current enforcement intention in the
exercise of its prosecutorial discretion. It reflects the outcome of an expedited, temporary
review procedure that is necessarily less thorough than ordinary business review
procedures. This letter should not be interpreted as applying to any matter other than the
Proposed Conduct as it relates strictly to, or arises directly out of, the COVID-19 pandemic.
This statement is made in accordance with the Department’s Business Review
Procedure, 28 U.S.C. § 50.6, and subject to the limitations and reservations of rights
therein. Pursuant to its terms, your business review request and this letter will be made
publicly available immediately, and any supporting data you have submitted will be made
publicly available within thirty days of the date of this letter, unless you request that part
of the material be withheld in accordance with paragraph 10(c) of the Business Review
Procedure

Sincerely,
/s/
Makan Delrahim

59
Areeda and Hovenkamp, supra, § 209.
60
See Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264 (2007); Gordon v. New York Stock Exch., 422
U.S. 659 (1975); see generally 2-13 Antitrust Law Developments 13D; Areeda & Hovenkamp, supra, §
243.
61
See Credit Suisse, 551 U.S. at 275–76.