The DOJ Withdraws Three "Outdated" Antitrust Enforcement Policy Statements Previously Providing Safe Harbors

The Biden Administration antitrust enforcement agencies have withdrawn policy statements and guidelines deemed obsolete or inconsistent with their current perspectives. In their most recent action, the Department of Justice's (DOJ) Antitrust Division withdrew three antitrust policy statements released in the context of the health care sector, but of much broader application, describing them as "outdated" and "overly permissive." Withdrawing these policy statements will potentially have significant repercussions that may impact information sharing and benchmarking activities in every industry.

While the DOJ has not replaced the withdrawn policy statements with specific updated guidance, it has warned that the old statements were too permissive, especially as it pertained to information sharing. Companies should reassess risk associated with information sharing practices (especially competitive intelligence services that aggregate competitors' data) and joint