Antitrust Analysis of Competitor Collaboration AgreementsAntitrust Byte June 14, 2018
Collaborations among competitors or potential competitors can take many forms, the most common being a joint venture. The Antitrust Guidelines for Collaboration Among Competitors, issued jointly by the Federal Trade Commission (“FTC”) and the U.S. Department of Justice (“DOJ”) in April 2000, explains that a “‘competitor collaboration’ comprises a set of one or more agreements, other than a merger agreement, between or among competitors to engage in economic activity, and economic activity resulting therefrom.” As the FTC and DOJ recently noted, although “[t]he antitrust laws accommodate procompetitive collaborations among competitors,” the agencies will hold accountable competitors that enter into anticompetitive agreements. Accordingly, each agreement that makes up a competitor collaboration requires an analysis of its potential competitive effects.
Agreements within a collaboration that are not deemed reasonably necessary to achieve the benefits of the collaboration may be summarily condemned as per se unlawful regardless of the level of market share of the parties involved. On the other hand, agreements that are “reasonably related to, and reasonably necessary to achieve procompetitive benefits from, an efficiency enhancing integration of economic activity” are considered to be “ancillary” and analyzed under the rule of reason.
Agreements on price and the internal allocation of markets are examples of agreements that might be part of a competitor collaboration. Such agreements would require a separate analysis to determine whether they are reasonably necessary to achieve the procompetitive benefits of the collaboration and, therefore, treated under the rule of reason, or summarily condemned as a per se violation of the antitrust laws.
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