Two recent developments have brought attention to information exchanges, a complex and subtle area of U.S. antitrust law. In a simple information exchange case subject to antitrust review, competitors have shared commercially sensitive information with one another without agreeing on a common course of competitive conduct (such as pricing, output, or strategy). The allegedly unlawful agreement in an information exchange case, unlike other types of restraints of trade, is the agreement to share information rather than an agreement to eliminate competition on prices or customers, for example. Information exchanges, even among direct rivals, can sharpen competition and, unless accompanied by an agreement not to compete, must be shown to have anticompetitive effects in a properly defined market before they can be deemed unlawful.
The Department of Justice (DOJ) charged satellite video programming provider DirecTV with unlawfully exchanging confidential strategic information with rivals in violation of §1 of the Sherman Act, which prohibits agreements in restraint of trade. DOJ asserted that DirecTV and the other providers agreed to exchange information with one another during negotiations to license the rights to broadcast Dodgers baseball games in the Los Angeles area.
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