DOJ Announcement on Information Sharing Creates Ambiguity

A recent Department of Justice (DOJ) announcement creates ambiguity for association information-sharing programs.

The DOJ recently withdrew three antitrust policy statements that provided guidance for information sharing by competitors that it had issued jointly with the Federal Trade Commission (FTC) starting 30 years ago. DOJ said that the guidance in those statements was “overly permissive on certain subjects, such as information sharing.”

The DOJ announcement creates uncertainty for association information-sharing programs because the antitrust safety zone set forth in the policy statements, although on its face applicable to the healthcare field, had been applied by DOJ to areas outside of healthcare and had been relied upon by parties, including many trade associations, professional societies and other nonprofits, when establishing their information-sharing programs.

DOJ did not issue new guidance but instead stated that it would be using a “case-by-case enforcement approach” going forward. Pillsbury attorneys Alvin Dunn, Evan Storm and Erica Baum have authored a comprehensive article on this issue, published in Associations Now.