The U.S. Department of Justice Antitrust Division and the
Federal Trade Commission (FTC) today issued a joint statement detailing an
expedited antitrust procedure and providing guidance for collaborations of
businesses working to protect the health and safety of Americans during the
COVID-19 pandemic.
The expedited procedure notes, for example, that health care
facilities may need to work together in providing resources and services to
assist patients, consumers, and communities affected by the pandemic and its
aftermath. Other businesses may need to temporarily combine production,
distribution, or service networks to facilitate production and distribution of
COVID-19-related supplies.
Under the expedited procedure for COVID-19 public health
projects, the agencies will respond to all COVID-19-related requests, and
resolve those addressing public health and safety, within seven calendar days
of receiving all information necessary to vet these proposals. The statement
sets out the instructions for businesses wishing to take advantage of this
procedure.
The expedited COVID-19 procedure offers quicker review than
existing FTC and Justice Department programs that are designed to provide
guidance to businesses concerned about the legality of proposed conduct under
the antitrust laws. The FTC’s “Staff Advisory Opinion” procedure and DOJ’s
“Business Review Letter” procedure allow any firm, individual, or group of
firms or individuals to submit a proposal to the agencies and to receive a
statement advising whether the agencies would challenge the proposed activity
under the antitrust laws.
“The Antitrust Division recognizes the importance of
providing expeditious clarity on any antitrust obligations in this challenging
time,” said Assistant Attorney General Makan Delrahim of the Department of
Justice’s Antitrust Division. “Our expedited Business Review Letter procedure
will help facilitate businesses that want to work quickly to address the urgent
public health and economic needs associated with COVID 19.”
“Under these extraordinary circumstances, we understand that
businesses collaborating on public health initiatives may need an expedited
response from U.S. antitrust authorities,” said FTC Chairman Joe Simons. “We
are committed to doing everything we can to help with these efforts, while
continuing to aggressively enforce the antitrust laws.”
The antitrust laws accommodate procompetitive collaborations
among competitors. In their joint statement, the FTC and the Department of
Justice listed several types of collaborative activities designed to improve
the health and safety response to the pandemic that would likely be consistent
with the antitrust laws.
At the same time, the agencies also stressed that they will
not hesitate to hold accountable those who try to use the pandemic to engage in
antitrust violations. In addition, the Department of Justice will criminally
prosecute conduct such as price-fixing, bid-rigging, or market allocation.
The expedited procedure requires that an applicant provide
the FTC or Justice Department a written description of the proposal, including
the parties that would be involved in the effort or activity, and the name and
contact information of a person from whom the agencies could obtain additional
information. This expedited procedure is for use solely for coronavirus-related
public health efforts and may be invoked at the option of the requestor, in
lieu of the agencies’ standard procedures for handling requests for advice.
The agencies also committed to expedite requests under the
National Cooperative Research and Production Act for flexible treatment of
certain standard development organizations and joint ventures.
The statement also notes that the FTC and the Justice
Department are 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 FTC’s Consumer Response Center at 1-877-382-4357
or the National Center for Disaster Fraud Hotline (1-866-720-5721) or e-mail
(disaster@leo.gov). 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.
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