DOJ Clarifies Stance On Information-sharing Practices With Statement Of Interest

The US Department of Justice (DOJ) recently filed a statement of interest (SOI) in an antitrust class action reminding businesses that participating in information exchanges – even when the information shared is aggregated, anonymized, and backward-looking – is not presumed lawful. Information exchanges are subject to a fact-intensive assessment to determine whether the information exchange harms competition. The statement provides guidance on the legality of information exchanges while the DOJ pursues its own enforcement agenda in this area.

In Depth

What happened?

On February 27, 2026, the DOJ filed an SOI in In re Frozen Potato Products Antitrust Litigation, an antitrust class action against four producers of frozen potato products and the data analytics platform to which the producers subscribed.

The plaintiffs, who are direct and indirect purchasers of frozen potato products, allege that these four producers shared competitively sensitive information with one another through a data analytics platform. The producers allegedly sent weekly sales and volume data to the platform and received reports comparing their data to those of their three competitors. The data also allegedly contained company projections.

The plaintiffs claim that the information exchange violated Section 1 of the Sherman Act for two reasons: The information exchange facilitated an agreement to fix prices and, even in the absence of a price-fixing agreement, the information exchange, standing alone, resulted in anticompetitive effects. The defendants filed motions to dismiss the plaintiffs’ consolidated complaints, suggesting that information exchange alone is insufficient to establish the concerted conduct requirement of a Section 1 claim and that sharing backward-looking data is insufficient to establish an anticompetitive effect.

The DOJ’s statement responds to the defendants’ motions to dismiss to correct potential misstatements of the legal framework applicable to Section 1 claims involving information exchanges.

DOJ’s framework for analyzing information exchanges

In its SOI, DOJ first states that information sharing, with the mutual expectation that others will do the same, is sufficient to establish the concerted action required for a Sherman Act Section 1 claim.

According to the DOJ, this is because “concerted action can take on many forms,” including both “express or implied agreements.” Citing Supreme Court precedent, the DOJ states that concerted action can occur when a defendant, in response to a request from its competitors for price data, “furnish[es] the data with the expectation that it would be furnished reciprocal information when it wanted it.” No prior agreement need exist. And it “makes no difference” whether the information is exchanged between the parties directly or through an intermediary, like a data analytics platform.

Second, the DOJ emphasized that information exchanges “are not presumed lawful,” even in circumstances where competitors are sharing aggregated, anonymized, and backward-looking data.

An information exchange itself can violate Section 1 under a rule of reason analysis according to the DOJ. Information exchanges can result in overall anticompetitive effects because “different information exchanges work in diverse ways and have distinct effects.” The point, according to the DOJ, is whether the information exchange has a “tendency…to suppress competition.”

Sharing information with competitors “can soften competition,” resulting in anticompetitive effects even when performed without an agreement to fix prices. Armed with knowledge of a competitor’s price, a firm can match it, ultimately depriving the market of fierce price competition and resulting in “market stabilization.”

Why does it matter?

Businesses should regularly reevaluate their information-sharing and benchmarking practices in light of the DOJ SOI and enforcement actions on this topic. Any reevaluation should include benchmarking, third-party data analytics platforms, surveys, and trade association data, among other data exchange mechanisms.

In the past, businesses across industries relied upon antitrust safety zones as defined in various DOJ and Federal Trade Commission (FTC) policy statements, including an information exchange safety zone defined in the 1996 Statements of Antitrust Enforcement in Health Care. The 1996 statement indicated that the agencies would not challenge exchanges involving price or cost information if:

• A third party managed the exchange;
• The data provided was more than three months old; and
• At least five participants were providing data, no one participant’s data represented more than 25% of a statistic, and no individual participant’s data could be identified.

In 2023, however, the agencies withdrew the 1996 statement – and with it, this safe harbor – in favor of a case-by-case approach to information exchanges. Since then, the DOJ has pursued several enforcement actions against information exchanges that involved sharing competitively sensitive information through third parties.

The DOJ’s SOI in In re Frozen Potato Products provides the latest indication of the agencies’ thinking on information-sharing practices. Combined with the 1996 statement, which still has informative value, companies should evaluate their information-sharing practices under the following principles:

• Businesses should have a strong, procompetitive rationale for participating in an information exchange. Businesses should consider their reasons for agreeing to exchange data, as well as how and how much the results influence their pricing and sales decisions.
• Public data presents less competitive risk than private data, and older data presents less competitive risk than more recent data and forecasts. Data tends to present more concern the more granular or detailed it is, too. Even if businesses share backward-looking data, businesses should consider the extent to which the information can be used to infer the current price a competitor charges to a specific consumer.
• Information exchanges involving a small number of participants or a participant that represents an outsized share of the reported statistics raise more competitive concerns than exchanges that aggregate data across numerous, smaller competitors; across a portion of the market; or from entities across different geographic markets. Even if the data is aggregated and anonymized, businesses should consider whether the data can still be attributed to a particular competitor or a small set of competitors.

These factors are not determinative but provide guidance for assessing risk. And businesses that share data through intermediaries that offer pricing algorithms should be mindful of the unique antitrust risks those models present, taking careful note of new and pending state laws that address these kinds of algorithmic software products.