The Federal Trade Commission and the Justice Department's antitrust division on Dec. 11 withdrew the Antitrust Guidelines for Collaborations Among Competitors.
Six things to know:
1. The Collaboration Guidelines, published in April 2000, no longer provide reliable guidance about how enforcers assess the legality of collaborations involving competitors, according to the federal agencies.
2. Businesses considering collaborating with competitors should review the relevant statutes and case law to determine whether a collaboration would violate the law.
3. The FTC and DOJ maintained that antitrust enforcement is considered on a case-by-case basis in the area of competitor collaborations because such collaborations can harm competition and undermine the competitive process.
4. The vote to withdraw the guidelines was 3-2, with Commissioners Andrew Ferguson and Melissa Holyoak dissenting.
5. Mr. Ferguson disagreed with the FTC's withdrawal of the antitrust guidelines 40 days before the inauguration of a new president.
"The commission should from time-to-time revisit its nonbinding guidance to ensure that it properly informs the public of the commission's enforcement position, promoting transparency and predictability. But the time for the Biden-Harris Commission to conduct such guidance review is over," Mr. Ferguson said in statement. "Last month, the American people elected a new President. Now is the time to facilitate an orderly transition, not to withdraw existing guidance or to push through revised or new guidance."
6. Commissioner Alvaro Bedoya pushed back against comments made by Mr. Ferguson and Ms. Holyoak. He argued that the guidelines contained out-of-date guidance that did not account for the evolution of Supreme Court and federal court guidance on these issues, relied on several outdated and withdrawn policy statements and described safe harbors that have no basis in federal antitrust law.
"We are not on vacation. The American people expect their government to keep working for them even in periods of transition," Mr. Bedoya said in a statement. "Collaborations among competitors carry significant risks of anticompetitive conduct that can harm consumers and market conditions. I look forward to working with the new administration as they review the evolving jurisprudence on competitor collaborations and issue new guidance for the business community."