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ARTICLE · 15 FEBRUARY 2023

No Safe Harbors: DOJ Signals Increased Scrutiny Of Information Exchanges

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On February 3, 2023, the Antitrust Division of the US Department of Justice (DOJ) withdrew its support for three long-standing policy statements relating to enforcement

United StatesAntitrust/Competition Law
Andre Geverola
Andre Geverola
Sonia Kuester Pfaffenroth
Sonia Kuester Pfaffenroth
Matthew Tabas
Matthew Tabas
Andrew Ellingsen
Andrew Ellingsen
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On February 3, 2023, the Antitrust Division of the US Department of Justice (DOJ) withdrew its support for three long-standing policy statements relating to enforcement in healthcare markets, characterizing them as "overly permissive" on subjects such as information sharing.1 The prior day, Principal Deputy Assistant Attorney General (PDAAG) Doha Mekki previewed the withdrawal during a speech in which she announced that the safety zones laid out in the policy statements are "outdated" and "no longer reflect market realities."2 While the policy statements pertain specifically to healthcare markets, DOJ's action has far-reaching implications outside of healthcare.

Antitrust enforcers and courts have used the safe harbors contained in the policy statements to analyze the legality of information exchanges in a broad range of industries. As a result, businesses have come to rely on those standards when structuring legitimate benchmarking and other information-exchange

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