More Antitrust Changes Afoot – More Guidelines Gone
The years 2023 and 2024 saw a slew of activity in the world of antitrust enforcement, and that trend will likely continue into 2025. While the change in presidential administrations may influence certain regulatory areas, prior activity such as the Federal Trade Commission’s (FTC) nationwide ban on non-competes, the withdrawal of the “health care safety zones” by the FTC and Department of Justice (DOJ) in 2023, along with the introduction of new merger guidelines, will likely have lasting effects.
Building on this momentum, on December 11, 2024, the FTC and DOJ took a major step by withdrawing the longstanding “Antitrust Guidelines for Collaborations Among Competitors”, which had served as a foundational guidance document since 2000. These Guidelines provided clarity on the scope of collaborations, joint ventures and information sharing amongst competitors. Their revocation reflects the ongoing shift towards heightened scrutiny of business practices, particularly in the health care industry. It also underscores the government’s intention to scrutinize health care joint ventures and collaborations on a case-by-case basis, focusing on whether they may stifle competition or harm consumers.
In revoking the Guidelines, the FTC and DOJ justified their decision by stating that the Guidelines were outdated and no longer providing reliable guidance on how to evaluate competitor collaborations. A number of significant court decisions, coupled with rapid changes in business practices and technological advances, have made the Guidelines moot in the eyes of the agencies.
This withdrawal marks a continued trend toward more aggressive antitrust enforcement, particularly in the health care industry. To that end, competing health care providers should tread carefully and give greater consideration to antitrust laws prior to entering into joint ventures or pursuing vertical integration efforts. Likewise, health care entities should refocus efforts intended to avoid inappropriate information sharing. Bottomline, health care organizations must ensure they are appropriately informed of all legal risks prior to engaging in joint activities or pursuing other integrating efforts.