Another One Bites The Dust: DOJ Pulls 3 Policy Statements, Leaving Trade Associations Guessing

Highlights

• The Antitrust Division of the U.S. Department of Justice (DOJ) on Feb. 2, 2023, announced its withdrawal of antitrust policy statements applicable to healthcare markets, expressing a preference for a "case-by-case" enforcement approach over advance guidance for industry participants.
• Withdrawal of the policy statements creates uncertainty for entities outside of the healthcare industry that had relied on an established antitrust "safety zone" when conducting industry benchmarking surveys.
• Going forward, trade associations and others conducting surveys or supervising information exchanges among industry participants cannot depend on rigid adherence to the safety zone factors to avoid antitrust scrutiny. Before proceeding, trade associations will instead need to consider how, if at all, the proposed survey could reduce competition.