DOJ Withdraws Policy Statements That Defined Limited Safe Harbor For Information Sharing Among Competitors

On February 3, 2023, the U.S. Department of Justice's Antitrust Division (DOJ) announced that it is withdrawing three policy statements the DOJ and Federal Trade Commission (FTC) issued between 1993 and 2011, related to antitrust enforcement in the healthcare industry that, among other things, address the permissibility of information sharing. Although the now-withdrawn policy statements pertained specifically to health care, the statements have widely been used to inform the antitrust analysis of information sharing — such as pricing and wage surveys — across a range of industries.

In withdrawing the policy statements, the DOJ called the statements "outdated" and "overly permissive on certain subjects," most notably the exchange of price and cost information between competitors. The announcement did not say whether the DOJ plans to replace the statements with alternative guidance; instead, the announcement says the DOJ will take a "case-by-case enforcement