Through recent enforcement actions, the Antitrust Division of the Department of Justice has shown its continuing vigilance in sanctioning information sharing that distorts the normal price-setting mechanisms for goods and services in the United States. 1 To minimize the risk of U.S. government investigation and possible litigation, businesses and their personnel must be smart about the information they share with others. As a start, businesses can ask themselves three basic questions about their information exchanges: (1) what is the information I am sharing, (2) who am I sharing the information with, and (3) what is the purpose of the sharing. The answers to these questions, in conjunction with the commentary below, should help in deciding whether antitrust counsel needs to be consulted before engaging in information sharing exercises. That said, as a rule of thumb companies should engage antitrust counsel when considering direct contacts, including information sharing, with competitors.
Information sharing and the antitrust laws. The Department of Justice, Antitrust Division (DOJ) and the Federal Trade Commission (FTC), the government authorities primarily responsible for enforcing the country's antitrust laws, have provided guidance for understanding when information sharing may trigger government inquiry and/or condemnation. 2 In short, trouble can arise when sharing "facilitates price or other competitive coordination among competitors." 3 In other words, the DOJ and FTC examine sharing to see if it "likely harms competition by increasing the ability or incentive profitably to raise price above or reduce output, quality, service, or innovation below what likely would prevail in the absence" of the sharing. 4 Key to enforcer examination is the who, what, and why of the sharing: who is receiving the information, what is the content of the information, and why is the information being shared. Examination can lead to intense scrutiny when the "who" is a competitor, the "what" is competitively sensitive information, and the "why" is to promote competitor collaboration deemed likely to harm (rather than heighten) competition.
Under the antitrust laws, "competition not combination, should be the law of trade." 5 Accordingly, antitrust enforcers are concerned with coordinated activity between competitors, 6 and that concern intensifies when information sharing involves "competitively sensitive information." The DOJ and FTC have defined such information through example: "recent, current, and future prices, cost data, or output levels." 7 Enforcer concerns over competitor sharing of sensitive information can be diffused when the "why" of the sharing is "reasonably necessary to achieve the procompetitive benefits of certain collaborations." 8
The broadcast television stations investigation and Nexstar settlement. In the middle of 2018, news surfaced that the DOJ was investigating direct and indirect information sharing between and among a number of broadcast television stations. In November 2018 the DOJ settled with six stations and followed in December with a settlement with Nexstar. 9 The Nexstar settlement is enlightening in understanding the types of information sharing that can draw the DOJ and FTC's ire.
A factual overview places the settlement in context: (1) stations sell ad time to advertisers targeting consumers in designated market areas (DMAs); (2) stations compete in various DMAs for ad time sales; (3) stations, directly or through national sales rep firms, negotiate ad time prices with advertisers; (4) advertisers use stations against one another to acquire better prices; (5) stations exchange "revenue pacing" data directly or through national sales rep firms; and (6) revenue pacing data compares station revenue over specific time periods and serves as an indicator of a station's current and future ad time inventory. 10 The DOJ alleged station exchanges of revenue pacing data helped the competing stations "gauge competitors' and advertisers' negotiation strategies, inform their own pricing strategies, and help them resist more effectively advertisers' attempts to obtain lower prices by playing stations off of one another." 11 This conduct allegedly "distorted the normal ad time price-setting mechanism ... and harmed the competitive process within the affected DMAs." 12 The DOJ did not allege the information exchanges constituted direct exchanges of pricing information.
In settling the case, the DOJ and Nexstar placed the terms of their settlement into a final judgment submitted to the presiding court for approval. The purpose of the final judgment is to ensure Nexstar does not engage in information sharing disruptive to competition in the ad time marketplace. 13 To this end, the final judgment prohibits Nexstar, directly or through sales rep firms, from sharing with competitors information less than 18 months old not generally available to the public "relating to pricing or pricing strategies, pacing, holding capacity, revenues, or market shares." 14 However, Nexstar is not prohibited from using the data with advertisers in the ordinary course of selling ad time, and not prohibited from using the data to evaluate or effectuate an asset transaction or when "reasonably necessary for achieving the efficiencies of any other legitimate competitor collaboration." 15
Take away points from Nexstar settlement. The final judgment's identification of prohibited and permissible information sharing provides valuable insight into whether certain types of information sharing is lawful or unlawful under the antitrust laws.
- "Competitively sensitive" means more than specific price data. Simply because communications with competitors do not state specific current or future prices, it does not mean those communications are lawful. Keep in mind the DOJ's definition of "competitively sensitive information" and declaration that Nexstar's conduct upset competitive pricing mechanisms. The exchange of sensitive information, such as revenue pacing data, can trigger antitrust liability.
- Age matters when it comes to sharing. The older information is, the less likely sharing it may be construed as exchanging competitively sensitive information. However, determining when information is relevant to current or future competitive strategy is a fact specific inquiry. In the Nexstar matter, the station was barred from sharing information less than 18 months old.
- Conduits can equal trouble. The use of third parties to communicate competitively sensitive information does not create a safe harbor for competitors to share information. 16 Conduit activity, including "benchmarking" can lead to antitrust liability just as easily as direct communications among competitors. 17
- Share with customers but use safeguards as needed. Companies should share information, as needed, with potential or actual customers to achieve business ends. However, if the customer is an actual or potential competitor, safeguards should be installed to limit usage to the supplier/customer relationship (e.g., restrict sharing to exchanges with a customer's purchasing team).
- Share with collaborators but only for legitimate competitive
purposes. Companies can share information with competitors when
necessary to advance "legitimate" business collaborations
and "bona fide" mergers and asset purchases/sales.
18 However, caution must be exercised in determining,
inter alia, what to share and when.
- For legitimate collaborations, the information exchange should be ancillary to the collaboration (e.g., sharing of survey data to assist a technologies collaboration in developing user-friendly software for consumers), and narrowly tailored to support the procompetitive goals of the collaboration. 19
- For bona fide deals, information exchanges before a transaction closes can implicate the antitrust laws. By example, even if competitors are merging to form a new organization their premerger interactions still affect the competitive process. Thus, "special care must be taken to minimize antitrust risks throughout the premerger negotiation and due diligence process, as well as during the integration planning process." 20
1. See United States v. Sinclair Broadcast Group, Inc., et al. (D.D.C.) (litigation and related settlements with over a half-dozen broadcast television stations about information sharing).
2. See, e.g., Dep't of Justice and Fed. Trade Comm'n, Antitrust Guidelines for Collaborations among Competitors (2000). Available at http://www.ftc.gov/os/2000/04/ftcdojguidelines.pdf.
3. Dep't of Justice and Fed. Trade Comm'n Antitrust Policy Statement on Sharing of Cybersecurity Information (Apr. 10, 2014). Available at https://www.ftc.gov/public-statements/2014/04/department-justice-federal-trade-commission-antitrust-policy-statement.
4. Id. at 5. The question is usually answered applying the rule of reason. This article does not address that analytical construct, but in the most general sense the rule weighs the competitive effects of an agreement (in this setting, an information sharing agreement) and decides whether the effects promote or erode competition. See Ohio v. Am. Express Co., 138 S. Ct. 2274, 2284 (2018); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885-86 (2007).
5. Fashion Originators' Guild, Inc. v. FTC, 312 U.S. 457, 468 (1941) (quotation omitted).
6. Competitors are not only those against which an entity competes to sell products or services but also those against which companies compete on the buy side of their business. For example, two companies that do not compete for widget sales still may compete in the employment market for employees. See, e.g., Dep't of Justice and Fed. Trade Comm'n Antitrust Guidance for Human Resource Professionals. Available at https://www.justice.gov/atr/file/903511/download.
7. Policy Statement of Sharing of Cybersecurity Information at 4-5.
8. Antitrust Guidelines for Collaborations among Competitors at 15.
9. See Dep't of Justice public affairs releases dated Nov. 13, 2018 and December 13, 2018. Available at https://www.justice.gov/opa/pr/justice-department-requires-six-broadcast-television-companies-terminate-and-refrain-unlawful; https://www.justice.gov/opa/pr/justice-department-reaches-settlement-nexstar-media-group-inc-ongoing-television-broadcaster.
10. See United States v. Sinclair Broadcast Group, Inc., et al. (Amended Compl., filed Dec. 13, 2018). Available at https://www.justice.gov/opa/press-release/file/1120131/download.
11. See United States v. Sinclair Broadcast Group, Inc., et al. (Competitive Impact Statement regarding Nexstar at 4-5, filed Dec. 13, 2018). Available at https://www.justice.gov/opa/press-release/file/1120136/download.
12. Id. at 5.
13. Id. at 5.
N14. See United States v. Sinclair Broadcast Group, Inc., et al. (Proposed Final Judgment regarding Nexstar at 2, 4-5, filed Dec. 13, 2018) ("Nexstar Final Judgment"). Available at https://www.justice.gov/opa/press-release/file/1120116/download.
15. Id. at 6.
16. When using third parties, the DOJ and FTC generally look favorably on information exchanges involving (1) older data, (2) data aggregation, and (3) numerous participants, such that data from a specific source cannot be isolated. See Antitrust Guidance for Human Resource Professionals at 5.
17. See, e.g., In re Domestic Drywall Antitrust Litig., 2018 U.S. Dist. LEXIS 118758, *3 (E.D. Pa. July 17, 2018) (noting plaintiffs' conduit theory, whereby a third party was alleged to have funneled pricing information between defendants, "proved to be very important in the Plaintiffs' building a successful dossier of evidence on liability as well as damages.").
18. Nexstar Final Judgment at 7.
19. When ancillary conduct creates a restraint on trade, if the restraint is reasonably necessary to achieving the goals of a competition enhancing collaboration among competitors the restraint itself will not render the collaboration illegal. See Rothery Storage & Van Co. v. Atlas Van Lines, 792 F.2d 210 (D.C. Cir. 1986). Accordingly, the Nexstar Final Judgment (at 7) states that if information is shared as part of a legitimate collaboration, "the collaboration to which the information is ancillary" must be identified and described with specificity.
20. Fed. Trade Comm'n, Avoiding Antitrust Pitfalls During Pre-merger Negotiations and Due Diligence (March 20, 2018). Available at https://www.ftc.gov/news-events/blogs/competition-matters/2018/03/avoiding-antitrust-pitfalls-during-pre-merger.
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