On Friday, February 3, 2023, the Department of Justice’s (“DOJ”) Antitrust Division formally withdrew three longstanding policy statements relating to antitrust enforcement in health care markets. The withdrawal is significant for all companies that are engaged in benchmarking and other information-sharing activities. Unlike the DOJ, the Federal Trade Commission (“FTC”) has neither withdrawn the policy statements nor commented on the DOJ’s withdrawal of the policy statements. For decades, a wide range of companies and trade associations had relied on the safe harbors set forth in these policy statements to ensure their activities complied with the antitrust laws and would not trigger enforcement action. The DOJ, however, described the policy statements as “outdated” and “overly permissive on . . . information sharing,” and, as a result, asserted that these statements “no longer serve their intended purposes of providing guidance to the public.”
The withdrawal of the policy statements, along with recent statements and enforcement actions, signals that the DOJ intends to step up its efforts to scrutinize and investigate benchmarking and competitor information exchanges. A recent speech by a senior DOJ official hinted at the factors that the DOJ plans to weigh in its analysis. In light of these developments, companies engaged in such activities should review their antitrust compliance protocols.
