To Share Or Not To Share: DOJ Withdraws Information Sharing Guidance

The Department of Justice (DOJ) Antitrust Division recently withdrew three sets of policy statements regarding the US antitrust agencies' enforcement approach to conduct in the healthcare industry that may have broader implications for treatment of information sharing agreements under US antitrust law. The policy statements included a safety zone framework for sharing competitively sensitive information without risk of antitrust liability that the agencies have extended beyond healthcare sectors.

DOJ's withdrawal statement, and a contemporaneous speech by the Principal Deputy Assistant Attorney General of DOJ's Antitrust Division, Doha Mekki, highlight concerns about the guidance on exchange of nonpublic information among competitors. With the withdrawal, information sharing arrangements both inside and outside of the healthcare industry may be subject to increased government scrutiny. Companies that have shared or are continuing to share industry information based