Join members of the BakerHostetler Antitrust and Competition Team on Monday, April 13, 2020 for a webinar where they will examine criminal and civil antitrust risks and the best practices businesses should follow to protect themselves, including an exploration of the immunities offered by the Defense Production Act, the Pandemic and All-Hazards Preparedness Act and the state action immunity doctrine. The DOJ/FTC expedited review process will also be discussed. Click here to register.
COVID-19 continues to spread exponentially, leading to shortages in medical supplies – from personal protective equipment such as facemasks and respirators to ordinarily ubiquitous cleansers and sanitizers. As attempts to “flatten the curve” (slow the infection rate) show mixed results, and import disruptions contribute to the growing shortage of medical supplies, manufacturers and suppliers are asking: “How can we collaborate with industry stakeholders to expedite production, streamline distribution and get equipment to the neediest healthcare providers?”
Attorney General William Barr warned in March that the federal antitrust laws will be enforced even during national emergencies. There is a risk that seemingly harmless agreements to resolve equipment shortages and supply chain disruptions could be viewed as per se violations of the Sherman Act and result in criminal prosecution. For example, the following collaborations could be risky, depending on companies’ competitive relationships: coordinating sales and distribution of products to the neediest customers and regions, collectively purchasing vital inputs, setting price caps to prevent price gouging, exchanging sales and production figures, and coordinating supply chains. Still, antitrust enforcers have not been tone-deaf to the exigencies created by the pandemic. Nor is the federal government powerless to adjust the application of the antitrust laws should they hinder a robust response. Continue Reading