COVID-19 Antitrust Agency Procedural Changes

By Brady Cummins (BakerHostetler)

Over the past several weeks, the U.S. antitrust enforcement agencies – the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) – have made several public announcements regarding changes to antitrust investigations and regulatory processes in response to the COVID-19 pandemic. In addition to changes to filing and meeting processes, the main takeaway from these announcements is that while agency staff continue to work remotely, parties should expect delays of investigations and litigations. This post summarizes the announcements that have been made by the FTC and the DOJ related to COVID-19 and what individuals and businesses should expect going forward:

• The DOJ warns it will use resources to enforce violations of antitrust laws with respect to public health products. On March 9, the DOJ announced that it would ensure resources were available to enforce antitrust laws against “bad actors” that might take advantage of the current emergency situation.[1] In particular, the announcement warned that individuals engaging in price fixing, bid rigging or market allocation with respect to personal health protection equipment such as face masks, gloves and respirators could face criminal prosecution.[2]
• The DOJ and the FTC have instituted expedited review procedures for COVID-19-related business collaborations. On March 24, the DOJ and the FTC announced expedited review procedures and provided guidance for collaborations of businesses working to protect the health and safety of Americans during the COVID-19 pandemic.[3] The agencies are aiming to resolve requests to evaluate proposed conduct addressing public health and safety within seven calendar days of receiving all necessary information.[4]
• The DOJ and the FTC seek additional time for investigations. For current and future investigations, the DOJ is seeking timing agreements from parties that give the DOJ 30 additional days to complete its investigation after compliance with second requests.[5] These 30 days would be in addition to the statutory time period of 30 days or whatever time period the DOJ and the parties had previously agreed to (which is 60 days under the DOJ’s Model Timing Agreement).

The FTC is conducting a review of investigations and litigations to decide whether to seek additional time under statutory and agreed-to timing requirements.[6] The FTC noted that “[p]arties and their counsel should expect that we will be in touch to discuss proposed modifications.”[7] The FTC has not specified how much additional time it is seeking.

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