On April 7, 2000, the Federal Trade Commission and the Department of Justice issued, in final form, the “Antitrust Guidelines for Collaboration Among Competitors.” The Guidelines state they are “intended to explain how the Agencies analyze certain antitrust issues raised by collaborations among competitors.” They do not replace the Agencies’ Horizontal Merger Guidelines, which continue to govern the Agencies’ analysis of mergers or their equivalent.
The Guidelines use a number of examples and purport to explain the Agencies’ analysis of potential competitive benefits and anti-competitive harms in a variety of settings, including production, marketing, and R&D collaborations, and in goods, technology, and R&D markets.
In addition, the Guidelines create two “Antitrust Safety Zones” – fact situations that the Agencies say they will not challenge. The safety zones are for:
(1) Collaborations in which the participants have no more than a 20% market share in any relevant market;
(2) Innovation markets where at least three independently controlled research efforts in addition to the collaboration have the “assets or characteristics and the incentive to engage in R&D that is a close substitute” for the collaboration’s R&D.
The Agencies note that many arrangements falling outside of the safety zones will not harm competition and that the Agencies will not challenge them. The safety zones do not apply to collaborations which are otherwise illegal per se, would not “otherwise be challenged without a detailed market analysis,” and which are not mergers or their equivalent.
The Guidelines represent a statement of the Agencies’ analytical approach and stated enforcement policy, but do not have the force of law, and, as the Agencies note, do not “remove judgment and discretion in antitrust law enforcement.” Although the stated purpose is to provide clarity to the business community, in most cases the Guidelines fall short of that goal. Accordingly, although the Guidelines may be a starting point for antitrust analysis of collaborative efforts, they do not end the analysis.
If you would like to view the text of the Guidelines, click here.
Copyright) 2000 Nixon Peabody LLP. All rights reserved.
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