Eerie Exchanges? US Antitrust Agencies Renew Focus On Information Exchange Practices

U.S. antitrust enforcers at the Department of Justice and the Federal Trade Commission have been focused on expanding their focus on information sharing practices in recent enforcement and policy statements. Most recently, the DOJ laid out its views in a Statement of Interest supporting private plaintiffs in a case targeting information sharing in pork production, where the DOJ itself has been active.

Through these policy initiatives, the Agencies have gradually walked back long-established guidance on safeguards on sharing information without raising concerns. While information sharing has primarily been used as evidence of anticompetitive agreements in the US, the DOJ through recent enforcement has also pushed to expand the law on standalone theories of harm. In doing so, they are increasingly focused on the roles of data vendors, software providers, and consultants who serve as middlemen in aggregating and sharing data among competitors.