United States: Department of Justice and Federal Trade Commission revoke cooperation with competitors

in short

On December 11, 2024, the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) announced the revocation of the 2000 Antitrust Guidance on Competitor Cooperation. The guidelines outline the agencies’ views on how to analyze competitor collaborations under antitrust law and provide a “safe zone” for certain types of collaborations that the agencies say will not be challenged.

The FTC voted 3-2 to withdraw the guidance, with two Republican commissioners writing a dissenting statement criticizing the FTC’s Democratic leadership for the timing of the decision — pointing to the upcoming change of administration and the past four years. Lack of action. As Commissioner Ferguson, announced by President-elect Donald Trump as the new Chairman of the Federal Trade Commission, said, “The time for the Biden-Harris Commission to conduct a review of this type of guidance is over. Last month, the American people elected a new President. “Now is the time to facilitate an orderly transition.”

• The DOJ and FTC said in a joint press release that the guidance “no longer provides reliable guidance on how enforcers can assess the legality of collaborations involving competitors.”
• No further details or replacement guidance were provided. Instead, the Justice Department and the Federal Trade Commission called on companies to “review relevant statutes and case law” when seeking to work with competitors.
• Commissioner Holyoke, another Republican commissioner, criticized the withdrawal for failing to replace the guidelines or even develop “close plans for future replacements” and creating business uncertainty.
• After the Trump administration confirms new leadership to the Justice Department and FTC, which may not be until this summer or later, the agencies may reinstate the guidance or issue updated guidance.
• In the meantime, businesses considering partnering with competitors should proceed with caution.

In April 2000, the Department of Justice and the Federal Trade Commission issued “Competitor Cooperation Guidelines” “intended to explain how the agencies analyze certain antitrust issues arising from cooperation among competitors.”¹ Its goal is to “enable companies to better understand possible antitrust implications when evaluating proposed transactions, thereby encouraging collaborations that are pro-competitive, discouraging collaborations that could harm competition and consumers, and facilitating agency investigations of collaborations.” The guidelines also provide “safe zones” that set standards within which agencies will not challenge certain types of collaborations, including general competitor collaborations and safe zones for research and development collaborations. The agencies withdrew other “safe zone” guidance during the Biden administration.²

A joint retraction from the U.S. Department of Justice and the Federal Trade Commission asserts that the guidelines are outdated and claims they are no longer reliable because:³

• They relied on “outdated and withdrawn policy statements.”
• They “risk creating a safe harbor that has no basis in antitrust regulations.”
• They relied on “outdated analytical methods” that failed to capture “advances in computer science, business strategy and economic disciplines” that enforcers use to evaluate collaborations.
• They do not cover the competitive impact of “modern corporate mergers and rapidly changing technologies (such as artificial intelligence, algorithmic pricing models, vertical integration and aggregation).”
• They do not reflect the major cases decided by the Supreme Court and federal appeals courts on cooperation issues since the guidance was issued.

In a statement of objections, Commissioner Holyoke criticized the withdrawal for “leaving businesses groping in the dark” without “any guidance on alternatives or even a close plan for future alternatives”.⁴ Commissioner Bedoya’s statement supporting the retraction differs from Commissioner Holyoke’s in that the joint retraction statement “identifies relevant precedent” and “encourages businesses considering collaboration to ‘review relevant statutes and case law to assess whether collaboration would be unlawful.'”⁵ Commissioner Holyoke strongly disagreed with Commissioner Bedoya’s argument because “it assumes that (1) all businesses have antitrust attorneys on speed dial and (2) all of the Commission’s guidance documents are unnecessary…” . Because businesses always have statutes and case law that can be reviewed. ” Commissioner Holyoke added that she disagreed with both premises and that she “suspected Commissioner Bedoya felt the same way.”

Commissioner Ferguson similarly criticized the current FTC leadership’s decision to withdraw the guidance “just 40 days before the country’s new president takes office.” While he agreed that the committee should “revisit its non-binding guidance from time to time,” he argued that it had missed the opportunity to do so in light of the recent election and should instead focus on “facilitating an orderly” transition. “⁶ Commissioner Holyoke echoed this sentiment in her statement of dissent, saying, “The majority has four years to address its concerns about the guidelines — now is not the time.” Commissioner Bedoya responded in a statement responded to these criticisms, declaring: “We are not on vacation. The American people expect their government to continue to serve them even in times of transition.”

Given the controversial nature of the withdrawal along party lines, the guidance may be reinstated once the Trump administration’s nominees to lead the Justice Department and FTC are confirmed. Alternatively, agencies could use the withdrawal as an opportunity to issue new guidance. Commissioner Bedoya welcomed the idea of ​​publishing updated guidance and said he “looks forward to working with the new administration to review the evolving jurisprudence on competitor cooperation and to publish new guidance for the business community.”

Until the new administration establishes antitrust leadership and provides guidance on how competitors can work together, businesses considering working with competitors should proceed with caution. We will continue to monitor developments in this area.

1 Antitrust Guidance on Cooperation Between Competitors, U.S. Department of Justice and Federal Trade Commission (April 2020),

2 US: DOJ withdraws information exchange ‘safe zone’, BAKER MCKENZIE (8 February 2023),

3 DOJ and FTC Withdraw Guidance on Cooperation Between Competitors, U.S. Department of Justice and Federal Trade Commission (December 11, 2024),

4 Commissioner Melissa Holyoak Withdraws Statement of Objection to the 2000 Antitrust Guidance on Competitor Cooperation, Commission Docket No. V250000 (December 11, 2024),

5 Statement by Commissioner Alvaro M. Bedoya on the revocation of the Antitrust Guidelines on Cooperation between Competitors, Case No.: V250000 (December 11, 2024)

6 Commissioner Andrew N. Ferguson’s Statement of Dissent Regarding the Revocation of the Antitrust Guidelines for Competitor Cooperation, No. V250000 (December 11, 2024),