On Dec. 11, Federal Trade Commission and the U.S. Department of Justice's Antitrust Division jointly withdrew the antitrust guidelines for collaborations among competitors. In place since April 2000, the guidelines purported to set forth an analytical framework for the agencies' antitrust enforcement policy under Section 1 of the Sherman Act, with respect to collaborative agreements between actual or potential competitors. Through the collaboration guidelines, the agencies had acknowledged that, although horizontal agreements can threaten to unreasonably restrain competition, nevertheless "[i]n order to compete in modern markets, competitors sometimes need to collaborate." In their joint announcement last month, the agencies stated that the guidelines are no longer reliable because they do not reflect recent case law regarding competitor collaborations; they rely on outdated and withdrawn DOJ and FTC policy statements; and they risk creating safe harbors, which, according to the agencies, have no basis in federal antitrust statutes.

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