Antitrust & Competition Law in the Age of a Global Pandemic

By Jason C. Hicks, David B. Hamilton, Matthew F. Tilley (Womble Bond Dickinson)

It is said that people “come together” in times of crisis. Yet, businesses should be wary of collaboration with their rivals because antitrust laws apply equally in times of emergency as well as prosperity.  Indeed, recent history and announcements from the Department of Justice signify a heightened focus on antitrust enforcement, especially with respect to markets affected by the COVID-19 pandemic.

Similarly, while there are motivational quotes about finding “opportunities” in a crisis, companies should be mindful of how their practices appear to outsiders.  State and federal laws prohibit opportunistic business practices such as price gouging, hoarding, and the broadly and ill-defined “unfair and deceptive trade practices” in the Federal Trade Commission Act and state consumer protection statutes.

The DOJ and FTC announced on Tuesday an expedited process for companies seeking business review letters or advisory opinions for coronavirus-related conduct “addressing public health and safety.”¹   While the agencies announced they will “account for exigent circumstances in evaluating [collaborative] efforts to address the spread of COVID-19 and its aftermath,” the agencies also strongly warned against efforts to take advantage of the pandemic through violations of consumer protection statutes and antitrust laws.

We have looked at the history of competition law in past economic crises and put together this guide addressing the issues companies should keep in mind today when dealing with pricing decisions, information sharing and collaboration, and other competition related issues during the COVID-19 crisis. 

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