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.1 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Commission (“FTC”) has neither withdrawn the policy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however, described the policy statements as “outdated”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.”
