Managing DOJ & FTC Scrutiny of Trade Association Activity for Anticompetitive Overreach

In recent years, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) have revisited their antitrust enforcement priorities, directly implicating trade association activities. This trend has continued under this presidential administration, as authorities are openly scrutinizing association conduct.

With Old Guidelines Gone, What Counts as Safe Collaboration?

On Feb. 3, 2023, the DOJ withdrew three longstanding policy statements it deemed "overly permissive on certain subjects, such as information sharing." Under the now-withdrawn guidance, sharing of cost or price information was considered within an antitrust "safety zone"—meaning authorities were unlikely to bring enforcement actions—if the data were managed by an independent third party; at least three months old; and sourced from at least five firms, with no single provider contributing more than 25 percent. Outputs also had to be aggregated.

While the safe harbors never provided complete immunity, they gave some indication to participants regarding where the line would be drawn by enforcers. So, what now?

Please select this link to read the complete article from ASAE's Center for Association Leadership.