Joint Ventures, Industry Groups, Trade Associations and Other Business Collaborations Face Increased Legal Uncertainty as Antitrust Enforcers Withdraw Longstanding Antitrust Collaboration Guidelines

At a Glance

• The FTC and the DOJ jointly announced the withdrawal of the Antitrust Guidelines for Collaborations Among Competitors, which previously outlined the agencies’ approach to analyzing collaborations when competitors or potential competitors come together.
• In the agencies’ view, the Collaboration Guidelines no longer reflected the “evolution” of antitrust law addressing collaborations involving competitors and relied in part on withdrawn and stale policy statements.
• For now, the agencies are not providing businesses with new guidance, but instead have directed companies to “review the relevant statutes and caselaw to assess whether a collaboration would violate the law.”

On December 11, 2024, the Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division (DOJ) jointly announced the withdrawal of the Antitrust Guidelines for Collaborations Among Competitors (Collaboration Guidelines) issued in April 2000. These Collaboration Guidelines previously outlined the agencies’ approach to analyzing collaborations given the risk of potentially anticompetitive activities when competitors or potential competitors come together. While the Collaboration Guidelines were not binding on courts, they nevertheless provided agencies and the judiciary with helpful tools to assess the legality of activities frequently engaged in by joint ventures, industry groups, trade associations and similar groups of competitors. The Collaboration Guidelines also provided significant assistance to businesses as they structured their collaborative activities to minimize antitrust risk (e.g., by erecting information firewalls and placing limits on the topics that could be discussed within a collaborative setting).

Under the Collaboration Guidelines’ analytical framework, most business collaborations were analyzed under the “rule of reason” so long as the collaborations were formed for procompetitive purposes and utilized appropriate guardrails to prevent anticompetitive information exchanges and agreements. Unlike the more draconian “per se” rule, under which competitor agreements are unlawful regardless of any potential procompetitive justifications, the “rule of reason” is a comparatively lenient standard that requires factfinders to weigh the procompetitive benefits of competitor exchanges and agreements against any potential anticompetitive effects.  While the Collaboration Guidelines have provided businesses and their antitrust counsel with important direction for structuring collaborations and their activities, the antitrust enforcement agencies believe they “no longer provide reliable guidance to the public about how enforcers assess the legality of collaborations involving competitors.”

In withdrawing the Collaboration Guidelines, the agencies emphasized how they were legally and economically outdated. In the agencies’ view, the Collaboration Guidelines no longer reflected the “evolution” of antitrust law addressing collaborations involving competitors and relied in part on withdrawn and stale policy statements. For example, the FTC specifically highlighted several prior guidelines and policy statements that the Collaboration Guidelines relied on which are no longer in effect, including the 1992 and 1997 Merger Guidelines, the 1993 Statements of Antitrust Enforcement Policy in Health Care and the 1995 Antitrust Guidelines for the Licensing of Intellectual Property.

Further, the agencies emphasized that the Collaboration Guidelines relied on analytical methods that failed to capture recent advances in both technology and business strategy. In particular, the FTC expressed concern that the Collaboration Guidelines did not address the competitive implications of newer technologies such as artificial intelligence or algorithmic pricing models, nor did they address modern business combinations such as vertical integration and private equity roll ups. Although the agencies emphasized their continued commitment to “vigorous antitrust enforcement on a case-by-case basis in the area of competitor collaborations,” they did not announce any plans to issue new guidance, instead advising businesses considering collaborating with competitors to “review the relevant statutes and caselaw to assess whether a collaboration would violate the law.”

The FTC’s vote to withdraw the Collaboration Guidelines was 3-2, with Republican Commissioners Andrew Ferguson and Melissa Holyoak dissenting. Notably, Commissioner Ferguson, whom President-elect Trump has designated as his choice to lead the FTC in the new administration, issued a dissenting statement, emphasizing his view that the FTC’s action to withdraw the Collaboration Guidelines during the transition period to a new presidential administration was inappropriate. Commissioner Holyoak also issued a dissenting statement, agreeing with Commissioner Ferguson’s view regarding the timing of the withdrawal, and going further to suggest that by withdrawing the Collaboration Guidelines without providing any plan for replacing them, the FTC had left “businesses grasping in the dark.” In response, Democratic Commissioner Alvaro Bedoya issued a statement emphasizing that the FTC had identified recent relevant legal precedent for businesses contemplating collaboration to review and consider, and further indicating that he looked forward to working with the Trump administration to issue new guidance for the business community.

Faegre previously advised clients on the likely changes to FTC policy given the upcoming change in administration, and this development reflects the growing tension between the FTC’s more progressive commissioners and those with a more traditional view of antitrust enforcement principles. In another controversial move as the Biden administration closes, on December 12, the three Democratic commissioners approved the FTC’s filing of its first enforcement action under the federal price discrimination statute, the Robinson-Patman Act, in more than two decades against Southern Glazer Wine & Spirits. The complaint alleges the wine and spirits distributor unlawfully provided steep discounts to large national retailers that were not made available to those retailers’ smaller competitors. Commissioners Ferguson and Holyoak opposed the filing, with Ferguson noting that the action represented an imprudent use of scare FTC resources, and Holyoak arguing that the challenged conduct was “plainly innocuous or even procompetitive.”

To be sure, supporters of President-elect Trump have expressed varied views on antitrust enforcement and the FTC’s role in policing potentially anticompetitive business transactions and relationships. Some, such as Commissioner Ferguson, have advocated for a return to pre-Biden-era enforcement priorities, while others, including Vice President-elect JD Vance, have expressed admiration for current Democratic FTC Chairperson Lina Khan’s progressive policy agenda, which has included using the antitrust laws to address social ills traditionally outside of the FTC’s enforcement domain.

In our view, it is likely the FTC will — over time — issue new guidance addressing competitor collaborations, especially considering the mutual interest in new guidance expressed by both Commissioners Holyoak and Bedoya. This new guidance likely will provide further instruction and discussion of modern technologies and business structures that the 2000 Collaboration Guidelines did not foresee. In the meantime, it is possible the FTC and DOJ under President-elect Trump will reinstate the Collaboration Guidelines until a new version of the guidelines is ready. At the same time, the new administration may reverse course entirely on other aspects of the Biden team’s enforcement agenda, including the enforcement action against Southern Glazer. At this stage, however, the antitrust goals and policy perspectives of the FTC and DOJ under President-elect Trump, including the timing and content of any new guidance to replace the Collaboration Guidelines and the FTC’s approach to price discrimination enforcement, is not yet clear.

Until the FTC and DOJ issue new guidelines regarding competitor collaborations, individual businesses, joint ventures, trade associations and industry groups finding themselves “grasping in the dark” should work with experienced antitrust counsel to assess the current state of the antitrust laws, rules and regulations and pursue their business initiatives with consideration for the political objectives of the new administration.