JOINT ANTITRUST STATEMENT REGARDING COVID-19 

Addressing the spread of Coronavirus Disease 2019 (“COVID-19”) will require 

unprecedented cooperation between federal, state, and local governments and among private 

businesses to protect Americans’ health and safety. The Antitrust Division of the Department of 

Justice (“the Division”) and the Bureau of Competition of the Federal Trade Commission (the 

“Bureau,” and collectively the “Agencies”) wish to make clear to the public that there are many 

ways firms, including competitors, can engage in procompetitive collaboration that does not 

violate the antitrust laws. 

The Agencies are committed to providing individuals and businesses in any sector of the 

economy that are responding to this national emergency expeditious guidance about how to ensure 

their efforts comply with the federal antitrust laws. The Antitrust Division’s Business Review 

Process and the Federal Trade Commission’s Advisory Opinion Process already provide ways for 

individuals and businesses to ask the Agencies to evaluate proposed conduct. While these 

processes generally take several months after the Agencies receive all necessary information, the 

Agencies recognize that many individuals and businesses are trying to address a rapidly evolving 

crisis as quickly as possible. Accordingly, the Agencies will aim to respond expeditiously to all 

COVID-19-related requests, and to resolve those addressing public health and safety within seven 

(7) calendar days of receiving all necessary information. 

Since joint ventures may be necessary for businesses to bring goods to communities in 

need, to expand existing capacity, or to develop new products or services, the Agencies will also 

work to expeditiously process filings under the National Cooperative Research and Production Act 

(as amended by the Standards Development Organization Advancement Act). See Dep’t of 

Justice, Filing a Notification Under NCRPA. These statutes provide flexible treatment under the 

antitrust laws for certain standard development organizations and joint ventures. 

The Agencies recognize, however, that some individuals and businesses may need to act 

immediately in addressing this ongoing pandemic. Many types of collaborative activities designed 

to improve the health and safety response to the pandemic would be consistent with the antitrust 

laws. For example: 

• As a general matter, the Agencies have stated that when firms collaborate on research and 

development this “efficiency-enhancing integration of economic activity” is typically 

procompetitive. See Federal Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines 

for Collaborations Among Competitors at 31 (2000). 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

• The Agencies have expressed that sharing technical know-how, rather than companyspecific data about prices, wages, outputs, or costs, may be “necessary to achieve the 

procompetitive benefits of certain collaborations.” Id. at 15; see also Federal Trade 

Commission, Information Exchange: Be Reasonable (discussing the “safety zones” around 

information sharing). 

• The Agencies have explained that they will not challenge, absent extraordinary 

circumstances, providers’ development of suggested practice parameters – standards for 

patient management developed to assist providers in clinical decisionmaking – that also 

may provide useful information to patients, providers, and purchasers. See Federal Trade 

Comm’n & U.S. Dep’t of Justice, Statement of Antitrust Enforcement Policy in Health 

Care at 41 (1996). 

• The Agencies have also explained that most joint purchasing arrangements among 

healthcare providers, such as those designed to increase the efficiency of procurement and 

reduce transaction costs, do not raise antitrust concerns. See id. at 53 (also explaining 

circumstances in which joint purchasing arrangements may raise concerns). 

• The antitrust laws would generally permit private lobbying addressed to the use of federal 

emergency authority, including private industry meetings with the federal government to 

discuss strategies on responding to COVID-19, “insofar as those activities comprise[] mere 

solicitation of governmental action with respect to the passage and enforcement of 

laws.” Eastern R. Conf. v Noerr Motors, 365 U.S. 127, 138 (1961); see also FTC, 

Enforcement Perspectives on the Noerr-Pennington Doctrine: An FTC Staff Report (2006) 

(discussing applicability and limitations). 

Interested businesses should refer to the Agencies’ previous statements on how they analyze 

cooperation and collaboration between competitors. See Federal Trade Comm’n & U.S. Dep’t of 

Justice, Antitrust Guidelines for Collaborations Among Competitors (2000) and 

Statement of Antitrust Enforcement Policy in Health Care (1996). 

The Agencies will also account for exigent circumstances in evaluating efforts to address 

the spread of COVID-19 and its aftermath. For example, health care facilities may need to work 

together in providing resources and services to communities without immediate access to personal 

protective equipment, medical supplies, or health care. Other businesses may need to temporarily 

combine production, distribution, or service networks to facilitate production and distribution of 

COVID-19-related supplies they may not have traditionally manufactured or distributed. 

These sorts of joint efforts, limited in duration and necessary to assist patients, consumers, and 

communities affected by COVID-19 and its aftermath, may be a necessary response to exigent 

circumstances that provide Americans with products or services that might not be available 

otherwise. 

Additionally, where the government enlists help from private businesses in addressing 

COVID-19, the Agencies stand ready to assist, such as by working with the Department of Health 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

and Human Services to effectuate the Defense Production Act and the Pandemic and All-Hazards 

Preparedness Act, as appropriate, along with other agencies working to address COVID-19. 

While many individuals and businesses have and will demonstrate extraordinary 

compassion and flexibility in responding to COVID-19, others may use it as an opportunity to 

subvert competition or prey on vulnerable Americans. The Division and the Bureau will not 

hesitate to seek to hold accountable those who do so. In particular, the Division and the Bureau 

stand ready to pursue civil violations of the antitrust laws, which include agreements between 

individuals and business to restrain competition through increased prices, lower wages, decreased 

output, or reduced quality as well as efforts by monopolists to use their market power to engage in 

exclusionary conduct. The Division will also prosecute any criminal violations of the antitrust 

laws, which typically involve agreements or conspiracies between individuals or businesses to fix 

prices or wages, rig bids, or allocate markets. 

More broadly, the Department of Justice is addressing actions by individuals and 

businesses to take advantage of COVID-19 through other fraudulent and illegal schemes. Anyone 

with information or concerns about this sort of conduct, or other COVID-19-related complaints, 

should contact the National Center for Disaster Fraud Hotline (1-866-720-5721) or e-mail 

(disaster@leo.gov). 

In sum, the Agencies, in addition to the rest of the Department of Justice and the Federal 

Trade Commission, will continue working closely with the public, the business community, and 

other federal agencies to responsibly enforce the antitrust laws to protect the health, safety, and 

welfare of all Americans. 

FTC ADVISORY OPINON PROCESS RELATED TO THE NOVEL CORONAVIRUS 

As noted above, the Federal Trade Commission through its Bureau of Competition provides 

antitrust guidance, upon request, in the form of advisory opinions concerning the likely analysis 

of proposed conduct under the antitrust laws. 

FTC rules provide for two types of Advisory Opinions: Commission advisory opinions and 

advisory opinions issued by staff. Commission advisory opinions are voted on by the Commission 

and are intended to address substantial or novel questions of fact or law, or subjects of significant 

interest. Staff advisory opinions typically provide guidance on proposed business conduct. 

In an effort to provide expedited antitrust guidance with respect to requests related to COVID-19, 

the Bureau will accept a request for an expedited staff advisory opinion, along with as much 

information and documents the requesting parties can reasonably provide. To use this temporary 

procedure, parties should do the following: 

1. Requests for an FTC staff advisory opinion should be submitted to the Bureau of 

Competition in writing via email at FTCCOVID19@ftc.gov. 

2. The request must explain how it is related to COVID-19 and provide a description of the 

nature and rationale of the proposal (including the names of the participants, the product(s) 

or service(s) the proposal will cover, and the temporal and geographic scope of the 

3 
 

 

 

 

 

 

 

arrangement), any proposed contractual or other arrangements among the parties (including 

copies of any documents memorializing the contract or arrangement), the names of the 

major expected customers, and any available information regarding the competitive 

significance of other providers of the product(s) or service(s) to be offered. The request 

must also provide the name and contact information of a person whom staff can contact for 

additional information. 

3. Any additional information submitted with the request for a staff advisory opinion, or

additional information requested by staff may be supplied via fax, email, or, in the staff’s

discretion, by telephone.

4. The Bureau’s responses will be in effect for one (1) year from the date of the response.

Parties may subsequently request, utilizing these expedited procedures, that the Bureau

reiterate its intention not to challenge the conduct, if further time is necessary to respond

to COVID-19 and its aftermath.

For more information on requesting a DOJ Business Review Letter, click here. 

The Federal Trade Commission continues to investigate fraudulent and deceptive activity 

involving COVID-19. The expedited advisory opinion process does not relate to or alter those 

efforts. More information on the FTC’s guidance on potential fraud, deceptive practices, and 

scams is available here, and to report a complaint go to www.ftc.gov/complaint. 

March 2020 

4