Businesses around the world are actively working to address the global COVID-19 pandemic, including through novel types of collaborations. In the United States, federal and state agencies, including the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”), are still in the early days of addressing the antitrust implications of COVID-19.
This Alert discusses key developments in the U.S. antitrust regulatory landscape and summarizes considerations to mitigate exposure to antitrust liability during the pendency of the crisis. For additional information on key European developments, please refer to the Alert on COVID-19 and antitrust from WilmerHale’s European Antitrust and Competition team available here.
- Recent Guidance From DOJ and the FTC: On March 24, 2020, DOJ and the FTC issued a Joint Antitrust Statement Regarding COVID-19 acknowledging that an efficient response to the crisis may require competitor collaboration. The Joint Statement announced accelerated agency reviews of collaborative action and summarized basic substantive standards, mostly drawing on existing agency guidelines.
- Procompetitive collaborations between or among competitors are not prohibited by the antitrust laws, and businesses may have strong arguments in the current crisis to collaboratively develop new products or produce goods that they do not traditionally manufacture to address COVID-19 related shortages.
- Compelling justifications for responses to COVID-19 continue to be important. Businesses should be ready to articulate why a collaboration is necessary to address COVID-19 and how the proposed collaboration is narrowly tailored in scope and time to achieve that stated purpose.
- Expedited Review Process: DOJ and the FTC will review and respond to COVID-19 collaboration proposals within seven days.
- To request expedited review, the parties must explain how the proposal relates to COVID-19 and provide a description of the proposal, including the temporal and geographic scope, any expected major customers, and any available significant information bearing on competition.
- Responses issued under this protocol will be in effect for one year, and parties may request an extension if needed.
- Potentially Permissible Collaborations: A wide range of competitor collaborations could potentially be procompetitive and permissible for addressing COVID-19, including:
- exigent production and logistics coordination, such as “temporarily combin[ing] production, distribution, or service networks to facilitate production and distribution of COVID-19-related supplies”;
- joint research and development efforts, such as research into treatment methods or development of a COVID-19 vaccine, that enable this relief to hit the market faster than would be possible absent the collaboration;
- collaborations on standards for patient management in the healthcare setting, such as discussion of best practices for emergency triage; and
- joint purchasing agreements for personal protective equipment, such as N-95 respirators and non-sterile gloves, to the extent those agreements are designed to increase efficiency of procurement.
- Information Sharing: While certain types of information sharing can raise competitive concerns, the antitrust laws permit companies to share certain information about experiences and best practices for addressing COVID-19, with appropriate guidance and oversight.
- For example, sharing of cybersecurity information or technical expertise necessary to protect critical infrastructure for addressing COVID-19, such as telecommunications and wireless networks needed to keep the public informed and support a distributed workforce, could potentially be procompetitive and permissible for addressing COVID-19.
- The bounds of permissible information sharing are fact-specific, and any exchanges of information that go beyond what is necessary to manage the crisis will likely raise antitrust risk.
Impact on Merger Review Process:
- Timing for Merger Reviews: Merger reviews are likely to take longer due to the transition to remote working at the agencies.
- The DOJ is seeking to extend timing agreements by 30 days.
- The FTC is reviewing pending merger investigations and litigation for potential modifications of timing agreements.
- The agencies temporarily suspended the process for granting early termination of the Hart-Scott-Rodino (“HSR”) waiting period on March 13, but will resume the process on March 30 as time and resources allow.
- The agencies asked parties and their counsel not to reach out to request early termination, and cautioned that early termination will be granted in fewer cases and more slowly than under normal circumstances.
- Ongoing Robust Review: There are no indications that the government will be less rigorous in its review of mergers.
- The FTC vowed to take affirmative action when unmodified time periods do not allow it to address competitive concerns.
- Because mergers create long-term structural changes, it is unlikely that the agencies will take a more permissive approach to transactions in the majority of cases.
- The agencies may be more receptive to certain arguments in light of the crisis, such as efforts to rely on failing or “flailing” firm defenses, which the agencies are typically reluctant to accept.
- For collaborations, focus on purpose, scope and timing. Every indication is that the agencies will be flexible with good faith collaboration designed to mitigate the effects of the crisis. But they will enforce against traditional anticompetitive conduct (such as price fixing or bid rigging)1 and will probe whether other forms of collaboration are genuinely focused on effects of the crisis. Good test questions are “Can I articulate why working together will help us mitigate COVID-19 effects better or faster than I could do it alone?” and “Is everyone clear that we will only do this while the crisis lasts?”
- If the collaboration is close to the line, consider seeking accelerated guidance. While only time will tell how the new review processes work in practice, the agencies clearly are willing to assist the business community as unbureaucratically as possible under the circumstances.
- In merger reviews, expect (further) delays. There will be fewer early terminations, meaning more HSR-reportable transactions will be suspended for at least 30 days even when they do not raise substantive issues. And even relatively simple matters, where the agencies open preliminary investigations, are more likely to require withdrawal and refiling (and it is possible that Congress will give the agencies additional time for the initial review). In matters with second requests, the agencies will seek more post-compliance review time in timing agreements.
- For reactive human resources measures, coordinated action remains risky. Coordination among firms over changes to employment status, compensation and benefits, such as industry-wide layoffs or wage adjustments, are likely to draw strict scrutiny absent compelling procompetitive justifications.
- See Federal Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidance for Human Resources Professionals (Oct. 2016); see also WilmerHale, Client Alerts, FTC/DOJ Guidance to Human Resource Professionals—Enforcement Scrutiny of Employment-Related Conduct (Nov. 7, 2016).
Complying with the antitrust laws during the pendency of the crisis can raise difficult and fact-intensive questions. WilmerHale’s antitrust team is available to quickly address issues and answer questions.