Sharing competitively sensitive information can carry antitrust risks in certain situations. Recently, the Antitrust Division of the U.S. Department of Justice indicated that it will take an increased interest in challenging information sharing as a potential antitrust violation in the health care sector and, possibly, other industries. While the division’s enforcement focus appears to be expanding, the legal landscape has yet to see significant shifts.
On February 2, 2023, Principal Deputy Assistant Attorney General Doha Mekki claimed that the U.S. Department of Justice’s (“DOJ”) prior approach to analyzing information sharing between competitors failed to reckon with modern market realities.1 The next day, the DOJ formally withdrew three policy statements — from 1993, 1996, and 2011 — that had created information sharing “safety zones” in the health care industry.2 Although these guidelines were issued in the context of health care, over time their principles have come to guide practitioners regarding information exchanges across industries. It is unclear whether DOJ’s recent actions indicate that it is taking a greater interest in information sharing beyond the health care sector.