On March 24, 2020, the U.S. Federal Trade Commission (FTC) and Department of Justice (DOJ) issued a joint statement announcing an expedited antitrust procedure to provide guidance to individuals and businesses seeking to collaborate to protect the health and safety of Americans during the COVID-19 pandemic. 
The FTC and the DOJ already had a process for individuals and businesses seeking an evaluation of proposed conduct, but the agencies typically take several months to complete an evaluation. Now, the FTC and DOJ will attempt to respond within seven (7) calendar days of receiving all necessary information about proposed collaborative arrangements to address public health and safety issues related to the COVID-19 pandemic.
The joint statement also includes examples of collaborative arrangements to respond to COVID-19 that will generally be consistent with antitrust laws, including:
Nevertheless, the FTC and DOJ warn in the joint statement that they “will not hesitate to hold accountable” individuals and businesses that engage in anticompetitive conduct, including “agreements between individuals and business[es] 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.” In particular, DOJ will investigate and criminally prosecute price-fixing, bid-rigging, or market allocation schemes.
As a result, businesses should not prematurely enter into collaborative arrangements with competitors to respond to the COVID-19 pandemic. Instead, they should consult with antitrust counsel to evaluate whether proposed arrangements are consistent with antitrust laws and to consider whether a submission to the FTC and DOJ using the expedited antitrust procedure would be appropriate.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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