The Department of Justice and the Federal Trade Commission (the “Agencies”) announced in a joint antitrust statement regarding COVID-19 that the procedures for antitrust review of proposed COVID-19-related collaborations will be expedited. According to the Joint Statement, a summary of which can be found here, “the Agencies are committed to providing individuals and businesses in any sector of the economy responding to this national emergency expeditious guidance about how to ensure their efforts comply with the federal antitrust laws.”
There are multiple avenues through which companies and individuals may request an expedited review of proposed collaborations designed to address the effects of COVID-19, including:
- the DOJ Antitrust Division’s Business Review Process;
- the FTC Bureau of Competition’s Advisory Opinion Process; and
- the Agencies’ joint venture Notification Process.
Information regarding the joint venture Notification process can be found here, and information on requesting an Expedited Business Review Letter or Advisory Opinion can be found here and here. These review procedures can be beneficial for several reasons. They provide the opportunity to receive guidance from the Agencies regarding the scope, interpretation, and application of the antitrust laws to proposed business conduct.
Typically, reviews are processed over the course of two to three months, or more. But in the face of COVID-19, the Agencies have committed to processing Business Review Letters and Advisory Opinions “within seven (7) days of receiving all necessary information” for collaborations designed to address COVID-19. The Agencies also acknowledge that in light of the pandemic and its forthcoming aftermath “joint ventures may be necessary for businesses to bring goods to communities in need.” The Agencies will accordingly work “to expeditiously process” joint venture Notifications.
As of this writing, the Agencies appear to be honoring their commitment. The DOJ issued an Expedited Business Review Letter on April 4, 2020, within five days of a request from several healthcare distributors. The healthcare distributors proposed to engage a collaboration to expedite and increase manufacturing, sourcing, and distribution of personal protective equipment and COVID-19-related medications. It has been concluded that the likelihood of harm to competition was low or non-existent, the DOJ noted the proposed collaboration would be “limited only to responding to the unprecedented COVID-19 pandemic and its aftermath and will only last for as long as such efforts are necessary for the welfare of Americans.”
While these temporarily expedited antitrust reviews are necessarily less thorough than under normal circumstances, businesses and individuals should consider requesting an antitrust review to ensure their proposed COVID-19-related collaborations are consistent with the antitrust laws.