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Law360 (March 24, 2020, 5:21 PM EDT) -- The U.S. Department of Justice and the Federal Trade Commission announced Tuesday that they will offer an expedited process for companies seeking assurances that activities related to combating the spread of COVID-19 don't violate antitrust law.
Companies seeking a DOJ Antitrust Division business review letter or FTC advisory opinion for coronavirus-related conduct "addressing public health and safety" will receive a response within seven calendar days of the agencies getting "all necessary information," according to the joint statement.
"The agencies are committed to providing individuals and businesses in any sector of the economy that are responding to this national emergency expeditious guidance about how to ensure their efforts comply with the federal antitrust laws," the enforcers said.
That's where the agencies' respective advisory processes come in, allowing companies to seek enforcement evaluation of proposed conduct.
"While these processes generally take several months after the agencies receive all necessary information, the agencies recognize that many individuals and businesses are trying to address a rapidly evolving crisis as quickly as possible," they said.
In addition to the seven-calendar-day commitment for public health and safety related issues, the agencies further said they'll try to "respond expeditiously" for all requests touching the novel coronavirus, which as of Tuesday had sickened more than 51,000 Americans and killed over 500, according Johns Hopkins University. Globally, the World Health Organization put the number at more than 372,000 confirmed cases and over 16,000 deaths Tuesday.
Advisory opinions, according to the agencies, will initially be good for a year after they've been granted.
The growing pandemic has left antitrust and consumer protection agencies scrambling worldwide to continue their functions while teleworking, cracking down on coronavirus-related conduct like price-gouging of needed goods, creating pathways for certain kinds of conduct aimed at combating the sickness and its economic impacts, and continuing to review proposed mergers.
Tuesday's announcement came a day after European Union enforcers said that companies in the bloc will be able to coordinate the distribution of much-needed products without being brought up on cartel charges.
The FTC and DOJ also said that in the case of joint ventures that might be needed "to bring goods to communities in need, to expand existing capacity or to develop new products or services," they'll try to "expeditiously process filings under the National Cooperative Research and Production Act."
For companies and individuals who need to act right away, the agencies said that a variety of "collaborative activities" with health and safety response aims are already considered copacetic under antitrust law.
Activities that are generally in the clear, according to the statement, include collaborative research and development, sharing of "technical know-how" separate from any pricing data, collaborative efforts devising health care "practice parameters," health care joint purchasing agreements that are aimed at improving efficiency and reducing costs, and private lobbying of federal agencies to use their emergency authority.
"The agencies will also account for exigent circumstances in evaluating efforts to address the spread of COVID-19 and its aftermath. For example, health care facilities may need to work together in providing resources and services to communities without immediate access to personal protective equipment, medical supplies or health care," the enforcers said. "Other businesses may need to temporarily combine production, distribution or service networks to facilitate production and distribution of COVID-19-related supplies they may not have traditionally manufactured or distributed."
Conversely, the agencies warned against efforts to take advantage of the pandemic, through violations of customer protection statutes or antitrust law. Among the potential conduct highlighted were agreements to hike prices, lower wages or reduce output or quality, in addition to attempted "exclusionary conduct" by monopolists.
--Additional reporting by Nadia Dreid. Editing by Gemma Horowitz.
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