Justice Department Changes Antitrust Policies for Evaluating Statistical and Other Information Exchange Programs
The U.S. Department of Justice (DOJ) and its Antitrust Division changed its approach to reviewing programs for collecting and sharing past, present, and future marketing statistics and other forms of information exchange. In a February 2, 2023 speech, Doha Mekki, Principal Deputy Attorney General of the Antitrust Division, announced the withdrawal of three healthcare enforcement policies it had consistently and broadly followed for decades.
Deputy AG Mekki’s speech broadly challenged the sufficiency of typical criteria for assessing the antitrust acceptability of market data programs, such as number of reporting companies, adequacy of data aggregation, use of third-party consultants, and reporting data that is at least three months old. The withdrawn policies created “safe harbor” criteria for information exchanges, such as statistical programs representing the activities of at least five companies per reporting category, with no company holding greater than a 25% market share. Withdrawal of the policies ends that safe harbor system, at least for the Department of Justice. Rather, DOJ will approach its review of information exchanges using general antitrust principles to determine whether the exchange of information harmed or could harm competition.
Although the three healthcare enforcement policies were jointly issued by DOJ and the Federal Trade Commission (FTC), the FTC policies will remain unchanged until the FTC Commissioners act. DOJ and FTC attorneys with whom we spoke declined to elaborate.
Impetus for Change
The DOJ announcement attributes its policy change to two fundamental factors: industry concentration and digital technologies. First, traditional concerns with industry concentration and vertical integration have morphed into “industry roll up.” Mekki’s example: “large health insurance companies now own providers, PBMs (pharmacy benefits managers), health data analytics companies, and acute care clinics.”
Second, digital technologies have altered the speed of reporting, eased the ability of larger groups of people to communicate, and prompted the use of similar pricing software and algorithms. Traditionally, the concept of all competitors having ideal market information was thought to promote optimum competition. Apparently, market dynamics becoming transparent is now a problem.
Fairly read, the Department is saying that general changes in market structures and digital technologies mandate a case-by-case approach based on general antitrust principles. Moreover, “At this time, the Division does not have immediate plans to replace them.”
Prospectively, counsel will need to work with companies and associations to review new or continuing information exchanges. In deciding whether to propose or sponsor information exchanges (or to modify existing information exchanges), a program-specific approach is needed to assess the potential for harm to competition by evaluating market structure and concentration, the type of information (competition-sensitivity), maintaining company-specific confidentiality (usually via aggregation), and similar parameters.
For association-sponsored programs, the association rarely has information on which to determine whether companies participating in association market data programs employ advanced digital technologies for data mining, use similar pricing algorithms, or how each company determines the prices of their products. Those decisions are the separate and unique responsibility of each company participating in the statistical program. Indeed, associations and their consultants and counsel could create significant antitrust risk by amassing such information. By statute, antitrust enforcers have the authority to gather such data.
Does this mean that the business world should stop information exchanges? No, information exchange is essential to conducting business. The speech is solely focused on “anticompetitive information exchanges.” Reflecting the focus and objectives of the speech, cases, and precedent supporting the pro-competitive nature of many information exchanges are not mentioned. Those omissions from the speech did not eradicate the existing case law and precedent, and the need for companies to have reasonably reliable information on which to base business decisions is important.
The DOJ’s case-by-case approach to judging potential misuse of exchanged information presents a renewed challenge to companies and their associations in fully assessing harm to competition issues. This will warrant separate, but coordinated, reviews by the sponsoring organization, participating companies, and their counsel.
Should you have any questions or need any other assistance regarding this topic, please do not hesitate to contact Peter de la Cruz (delacruz@khlaw.com), Jeffrey Keithline (keithline@khlaw.com), or your existing contact at Keller and Heckman LLP.
References
The Feb. 3 DOJ press release at: https://www.justice.gov/opa/pr/justice-department-withdraws-outdated-enforcement-policy-statements.
The Feb. 2 speech by Doha Mekki, Principal Deputy Attorney General of the Antitrust Division, at: Principal Deputy Assistant Attorney General Doha Mekki of the Antitrust Division Delivers Remarks at GCR Live: Law Leaders Global 2023 | OPA | Department of Justice.
The “three outdated antitrust policy statements” relate to enforcement in healthcare markets: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Healthcare Area (Sept. 15, 1993); Statements of Antitrust Enforcement Policy in Healthcare (Aug. 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011).