COVID-19 Response Planning: Minding the Antitrust Gap
Businesses around the globe continue to react to coronavirus disease 2019 (“COVID-19”) as the global pandemic creates unprecedented challenges for companies including supply chain issues, employment-related matters, and forced closings or other national or local operating restrictions. In confronting these issues, companies may desire to coordinate with other industry participants during the business downturn and an uncertain future. The U.S. antitrust agencies acknowledge that benefits can accrue from some types of competitor collaborations, in the ordinary course as well as in response to natural disasters having severe economic consequences. However, coordination is not risk-free even in extraordinary circumstances such as the current pandemic. In addition, unilateral actions may face antitrust scrutiny, including under price gouging laws. In navigating their COVID-19 response, businesses must remain mindful of these risks. Within this memorandum, we highlight certain common issues facing businesses and the potential corresponding U.S. antitrust risk.