Joint FTC-DOJ Antitrust Statement Regarding COVID-19

JOINT ANTITRUST STATEMENT REGARDING COVID-19
Addressing 	the 	spread 	of 	Coronavirus 	Disease 	2019 	(“COVID-19”) 	will require
unprecedented cooperation between federal, state, and local governments and among private
businesses to protect Americans’ health and safety. The Antitrust Division of the Department of
Justice (“the Division”) and the Bureau of Competition of the Federal Trade Commission (the
“Bureau,” and collectively the “Agencies”) wish to make clear to the public that there are many
ways firms, including competitors, can engage in procompetitive collaboration that does not
violate the antitrust laws.
The Agencies are committed to providing individuals and businesses in any sector of the
economy that are responding to this national emergency expeditious guidance about how to ensure
their efforts comply with the federal antitrust laws. 	The Antitrust Division’s Business Review
Process and the Federal Trade Commission’s Advisory Opinion Process already provide ways for
individuals and businesses to ask the Agencies to evaluate proposed conduct. 	While these
processes generally take several months after the Agencies receive all necessary information, the
Agencies recognize that many individuals and businesses are trying to address a rapidly evolving
crisis as quickly as possible. Accordingly, the Agencies will aim to respond expeditiously to all
COVID-19-related requests, and to resolve those addressing public health and safety within seven
(7) calendar days of receiving all necessary information.
Since joint ventures may be necessary for businesses to bring goods to communities in
need, to expand existing capacity, or to develop new products or services, the Agencies will also
work to expeditiously process filings under the National Cooperative Research and Production Act
(as amended by the Standards Development Organization Advancement Act). 	See Dep’t of
Justice, Filing a Notification Under NCRPA. These statutes provide flexible treatment under the
antitrust laws for certain standard development organizations and joint ventures.
The Agencies recognize, however, that some individuals and businesses may need to act
immediately in addressing this ongoing pandemic. Many types of collaborative activities designed
to improve the health and safety response to the pandemic would be consistent with the antitrust
laws. For example:
• 	As a general matter, the Agencies have stated that when firms collaborate on research and
development this “efficiency-enhancing integration of economic activity” is typically
procompetitive. See Federal Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines
for Collaborations Among Competitors at 31 (2000).
1

• 	The Agencies have expressed that sharing technical know-how, rather than company-
specific data about prices, wages, outputs, or costs, may be “necessary to achieve the
procompetitive benefits of certain collaborations.” 	Id. at 15; see also Federal Trade
Commission, Information Exchange: Be Reasonable (discussing the “safety zones” around
information sharing).
• 	The 	Agencies 	have 	explained 	that 	they 	will 	not 	challenge, 	absent 	extraordinary
circumstances, providers’ development of suggested practice parameters – standards for
patient management developed to assist providers in clinical decisionmaking – that also
may provide useful information to patients, providers, and purchasers. See Federal Trade
Comm’n & U.S. Dep’t of Justice, Statement of Antitrust Enforcement Policy in Health
Care at 41 (1996).
• 	The Agencies have also explained that most joint purchasing arrangements among
healthcare providers, such as those designed to increase the efficiency of procurement and
reduce transaction costs, do not raise antitrust concerns. 	See id. at 53 (also explaining
circumstances in which joint purchasing arrangements may raise concerns).
• 	The antitrust laws would generally permit private lobbying addressed to the use of federal
emergency authority, including private industry meetings with the federal government to
discuss strategies on responding to COVID-19, “insofar as those activities comprise[] mere
solicitation of governmental action with respect to the passage and enforcement of
laws.” Eastern R. Conf. v Noerr Motors, 365 U.S. 127, 138 (1961); see also FTC,
Enforcement Perspectives on the Noerr-Pennington Doctrine: An FTC Staff Report (2006)
(discussing applicability and limitations).
Interested businesses should refer to the Agencies’ previous statements on how they analyze
cooperation and collaboration between competitors. See Federal Trade Comm’n & U.S. Dep’t of
Justice, 	Antitrust 	Guidelines 	for 	Collaborations 	Among 	Competitors 	(2000) 	and
Statement of Antitrust Enforcement Policy in Health Care (1996).
The Agencies will also account for exigent circumstances in evaluating efforts to address
the spread of COVID-19 and its aftermath. For example, health care facilities may need to work
together in providing resources and services to communities without immediate access to personal
protective equipment, medical supplies, or health care. Other businesses may need to temporarily
combine production, distribution, or service networks to facilitate production and distribution of
COVID-19-related 	supplies 	they 	may 	not 	have 	traditionally 	manufactured 	or 	distributed.
These sorts of joint efforts, 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.
Additionally, where the government enlists help from private businesses in addressing
COVID-19, the Agencies stand ready to assist, such as by working with the Department of Health
2

and Human Services to effectuate the Defense Production Act and the Pandemic and All-Hazards
Preparedness Act, as appropriate, along with other agencies working to address COVID-19.
While 	many 	individuals 	and 	businesses 	have 	and 	will 	demonstrate 	extraordinary
compassion and flexibility in responding to COVID-19, others may use it as an opportunity to
subvert competition or prey on vulnerable Americans. 	The Division and the Bureau will not
hesitate to seek to hold accountable those who do so. In particular, the Division and the Bureau
stand ready to pursue civil violations of the antitrust laws, which include agreements between
individuals and business to restrain competition through increased prices, lower wages, decreased
output, or reduced quality as well as efforts by monopolists to use their market power to engage in
exclusionary conduct. 	The Division will also prosecute any criminal violations of the antitrust
laws, which typically involve agreements or conspiracies between individuals or businesses to fix
prices or wages, rig bids, or allocate markets.
More broadly, the Department of Justice is addressing actions by individuals and
businesses to take advantage of COVID-19 through other fraudulent and illegal schemes. Anyone
with information or concerns about this sort of conduct, or other COVID-19-related complaints,
should contact the National Center for Disaster Fraud Hotline (1-866-720-5721) or e-mail
(disaster@leo.gov).
In sum, the Agencies, in addition to the rest of the Department of Justice and the Federal
Trade Commission, will continue working closely with the public, the business community, and
other federal agencies to responsibly enforce the antitrust laws to protect the health, safety, and
welfare of all Americans.
FTC ADVISORY OPINON PROCESS RELATED TO THE NOVEL CORONAVIRUS
As noted above, the Federal Trade Commission through its Bureau of Competition provides
antitrust guidance, upon request, in the form of advisory opinions concerning the likely analysis
of proposed conduct under the antitrust laws.
FTC rules provide for two types of Advisory Opinions: 	Commission advisory opinions and
advisory opinions issued by staff. Commission advisory opinions are voted on by the Commission
and are intended to address substantial or novel questions of fact or law, or subjects of significant
interest. Staff advisory opinions typically provide guidance on proposed business conduct.
In an effort to provide expedited antitrust guidance with respect to requests related to COVID-19,
the Bureau will accept a request for an expedited staff advisory opinion, along with as much
information and documents the requesting parties can reasonably provide. To use this temporary
procedure, parties should do the following:
1. 	Requests for an FTC staff advisory opinion should be submitted to the Bureau of
Competition in writing via email at FTCCOVID19@ftc.gov.
2. 	The request must explain how it is related to COVID-19 and provide a description of the
nature and rationale of the proposal (including the names of the participants, the product(s)
or service(s) the proposal will cover, and the temporal and geographic scope of the
3

arrangement), any proposed contractual or other arrangements among the parties (including
copies of any documents memorializing the contract or arrangement), the names of the
major expected customers, and any available information regarding the competitive
significance of other providers of the product(s) or service(s) to be offered. The request
must also provide the name and contact information of a person whom staff can contact for
additional information.
3. 	Any additional information submitted with the request for a staff advisory opinion, or
additional information requested by staff may be supplied via fax, email, or, in the staff’s
discretion, by telephone.
4. 	The Bureau’s responses will be in effect for one (1) year from the date of the response.
Parties may subsequently request, utilizing these expedited procedures, that the Bureau
reiterate its intention not to challenge the conduct, if further time is necessary to respond
to COVID-19 and its aftermath.
For more information on requesting a DOJ Business Review Letter, click here.
The Federal Trade Commission continues to investigate fraudulent and deceptive activity
involving COVID-19. The expedited advisory opinion process does not relate to or alter those
efforts. 	More information on the FTC’s guidance on potential fraud, deceptive practices, and
scams is available here, and to report a complaint go to www.ftc.gov/complaint.
March 2020
4

JOINT ANTITRUST STATEMENT REGARDING COVID-19
Addressing 	the 	spread 	of 	Coronavirus 	Disease 	2019 	(“COVID-19”) 	will require
unprecedented cooperation between federal, state, and local governments and among private
businesses to protect Americans’ health and safety. The Antitrust Division of the Department of
Justice (“the Division”) and the Bureau of Competition of the Federal Trade Commission (the
“Bureau,” and collectively the “Agencies”) wish to make clear to the public that there are many
ways firms, including competitors, can engage in procompetitive collaboration that does not
violate the antitrust laws.
The Agencies are committed to providing individuals and businesses in any sector of the
economy that are responding to this national emergency expeditious guidance about how to ensure
their efforts comply with the federal antitrust laws. 	The Antitrust Division’s Business Review
Process and the Federal Trade Commission’s Advisory Opinion Process already provide ways for
individuals and businesses to ask the Agencies to evaluate proposed conduct. 	While these
processes generally take several months after the Agencies receive all necessary information, the
Agencies recognize that many individuals and businesses are trying to address a rapidly evolving
crisis as quickly as possible. Accordingly, the Agencies will aim to respond expeditiously to all
COVID-19-related requests, and to resolve those addressing public health and safety within seven
(7) calendar days of receiving all necessary information.
Since joint ventures may be necessary for businesses to bring goods to communities in
need, to expand existing capacity, or to develop new products or services, the Agencies will also
work to expeditiously process filings under the National Cooperative Research and Production Act
(as amended by the Standards Development Organization Advancement Act). 	See Dep’t of
Justice, Filing a Notification Under NCRPA. These statutes provide flexible treatment under the
antitrust laws for certain standard development organizations and joint ventures.
The Agencies recognize, however, that some individuals and businesses may need to act
immediately in addressing this ongoing pandemic. Many types of collaborative activities designed
to improve the health and safety response to the pandemic would be consistent with the antitrust
laws. For example:
• 	As a general matter, the Agencies have stated that when firms collaborate on research and
development this “efficiency-enhancing integration of economic activity” is typically
procompetitive. See Federal Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines
for Collaborations Among Competitors at 31 (2000).
1

• 	The Agencies have expressed that sharing technical know-how, rather than company-
specific data about prices, wages, outputs, or costs, may be “necessary to achieve the
procompetitive benefits of certain collaborations.” 	Id. at 15; see also Federal Trade
Commission, Information Exchange: Be Reasonable (discussing the “safety zones” around
information sharing).
• 	The 	Agencies 	have 	explained 	that 	they 	will 	not 	challenge, 	absent 	extraordinary
circumstances, providers’ development of suggested practice parameters – standards for
patient management developed to assist providers in clinical decisionmaking – that also
may provide useful information to patients, providers, and purchasers. See Federal Trade
Comm’n & U.S. Dep’t of Justice, Statement of Antitrust Enforcement Policy in Health
Care at 41 (1996).
• 	The Agencies have also explained that most joint purchasing arrangements among
healthcare providers, such as those designed to increase the efficiency of procurement and
reduce transaction costs, do not raise antitrust concerns. 	See id. at 53 (also explaining
circumstances in which joint purchasing arrangements may raise concerns).
• 	The antitrust laws would generally permit private lobbying addressed to the use of federal
emergency authority, including private industry meetings with the federal government to
discuss strategies on responding to COVID-19, “insofar as those activities comprise[] mere
solicitation of governmental action with respect to the passage and enforcement of
laws.” Eastern R. Conf. v Noerr Motors, 365 U.S. 127, 138 (1961); see also FTC,
Enforcement Perspectives on the Noerr-Pennington Doctrine: An FTC Staff Report (2006)
(discussing applicability and limitations).
Interested businesses should refer to the Agencies’ previous statements on how they analyze
cooperation and collaboration between competitors. See Federal Trade Comm’n & U.S. Dep’t of
Justice, 	Antitrust 	Guidelines 	for 	Collaborations 	Among 	Competitors 	(2000) 	and
Statement of Antitrust Enforcement Policy in Health Care (1996).
The Agencies will also account for exigent circumstances in evaluating efforts to address
the spread of COVID-19 and its aftermath. For example, health care facilities may need to work
together in providing resources and services to communities without immediate access to personal
protective equipment, medical supplies, or health care. Other businesses may need to temporarily
combine production, distribution, or service networks to facilitate production and distribution of
COVID-19-related 	supplies 	they 	may 	not 	have 	traditionally 	manufactured 	or 	distributed.
These sorts of joint efforts, 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.
Additionally, where the government enlists help from private businesses in addressing
COVID-19, the Agencies stand ready to assist, such as by working with the Department of Health
2

and Human Services to effectuate the Defense Production Act and the Pandemic and All-Hazards
Preparedness Act, as appropriate, along with other agencies working to address COVID-19.
While 	many 	individuals 	and 	businesses 	have 	and 	will 	demonstrate 	extraordinary
compassion and flexibility in responding to COVID-19, others may use it as an opportunity to
subvert competition or prey on vulnerable Americans. 	The Division and the Bureau will not
hesitate to seek to hold accountable those who do so. In particular, the Division and the Bureau
stand ready to pursue civil violations of the antitrust laws, which include agreements between
individuals and business to restrain competition through increased prices, lower wages, decreased
output, or reduced quality as well as efforts by monopolists to use their market power to engage in
exclusionary conduct. 	The Division will also prosecute any criminal violations of the antitrust
laws, which typically involve agreements or conspiracies between individuals or businesses to fix
prices or wages, rig bids, or allocate markets.
More broadly, the Department of Justice is addressing actions by individuals and
businesses to take advantage of COVID-19 through other fraudulent and illegal schemes. Anyone
with information or concerns about this sort of conduct, or other COVID-19-related complaints,
should contact the National Center for Disaster Fraud Hotline (1-866-720-5721) or e-mail
(disaster@leo.gov).
In sum, the Agencies, in addition to the rest of the Department of Justice and the Federal
Trade Commission, will continue working closely with the public, the business community, and
other federal agencies to responsibly enforce the antitrust laws to protect the health, safety, and
welfare of all Americans.
FTC ADVISORY OPINON PROCESS RELATED TO THE NOVEL CORONAVIRUS
As noted above, the Federal Trade Commission through its Bureau of Competition provides
antitrust guidance, upon request, in the form of advisory opinions concerning the likely analysis
of proposed conduct under the antitrust laws.
FTC rules provide for two types of Advisory Opinions: 	Commission advisory opinions and
advisory opinions issued by staff. Commission advisory opinions are voted on by the Commission
and are intended to address substantial or novel questions of fact or law, or subjects of significant
interest. Staff advisory opinions typically provide guidance on proposed business conduct.
In an effort to provide expedited antitrust guidance with respect to requests related to COVID-19,
the Bureau will accept a request for an expedited staff advisory opinion, along with as much
information and documents the requesting parties can reasonably provide. To use this temporary
procedure, parties should do the following:
1. 	Requests for an FTC staff advisory opinion should be submitted to the Bureau of
Competition in writing via email at FTCCOVID19@ftc.gov.
2. 	The request must explain how it is related to COVID-19 and provide a description of the
nature and rationale of the proposal (including the names of the participants, the product(s)
or service(s) the proposal will cover, and the temporal and geographic scope of the
3

arrangement), any proposed contractual or other arrangements among the parties (including
copies of any documents memorializing the contract or arrangement), the names of the
major expected customers, and any available information regarding the competitive
significance of other providers of the product(s) or service(s) to be offered. The request
must also provide the name and contact information of a person whom staff can contact for
additional information.
3. 	Any additional information submitted with the request for a staff advisory opinion, or
additional information requested by staff may be supplied via fax, email, or, in the staff’s
discretion, by telephone.
4. 	The Bureau’s responses will be in effect for one (1) year from the date of the response.
Parties may subsequently request, utilizing these expedited procedures, that the Bureau
reiterate its intention not to challenge the conduct, if further time is necessary to respond
to COVID-19 and its aftermath.
For more information on requesting a DOJ Business Review Letter, click here.
The Federal Trade Commission continues to investigate fraudulent and deceptive activity
involving COVID-19. The expedited advisory opinion process does not relate to or alter those
efforts. 	More information on the FTC’s guidance on potential fraud, deceptive practices, and
scams is available here, and to report a complaint go to www.ftc.gov/complaint.
March 2020
4