On October 1, 1999, the Federal Trade Commission (“FTC”) and the Antitrust Division of the U.S. Department of Justice (“DOJ”) issued draft Antitrust Guidelines for Collaborations Among Competitorsin response to calls for greater clarity in the antitrust analysis of joint ventures. The guidelines are intended to clarify the agencies’ approach to competitor collaborations and to reduce uncertainties that can discourage collaboration.
The agencies have added a new term to the antitrust vocabulary, “competitor collaboration,” which is defined as a “set of one or more agreements, other than merger agreements, between or among competitors to engage in economic activity, and the economic activity resulting therefrom.” The term is intended to cover a broad range of conduct, including joint ventures, strategic alliances and other horizontal agreements, although it does not apply to collaborations that are reviewed as mergers or to certain vertical relationships. In a significant break from the development of past guidelines, the agencies sought written testimony, held hearings, issued working papers and conducted roundtable discussions before issuing the draft.
