DOJ, FTC Bend Antitrust Rules to Let Companies Collaborate on Fighting COVID-19
The agencies are still enforcing antitrust laws, Morrison & Foerster partner David Meyer said. He added, "I think each situation still needs to be evaluated by counsel. These are good tools to use, but they are not a blank check."
March 25, 2020 at 05:33 PM
4 minute read
The original version of this story was published on Corporate Counsel
With two key U.S. antitrust agencies offering their blessing, a group of at least 19 organizations have agreed to form an unprecedented coalition to meet the challenges wrought by the coronavirus.
The COVID-19 Healthcare Coalition includes big tech companies like Microsoft Corp. and Amazon Web Services, health care companies like the Mayo Clinic and HCA Healthcare, electronic medical record companies, universities and others who are coordinating U.S. pandemic response efforts using data and analytics.
In a statement the group said, "Our mission is to save lives by providing real-time learning to preserve health care delivery and protect populations. We're bringing together the best, brightest minds, assets and insights from across private industry to coordinate a response."
Sometimes that means companies that normally compete against each other might be collaborating on projects.
The U.S. Department of Justice and the Federal Trade Commission on Tuesday issued a joint statement recognizing the need for "unprecedented cooperation between federal, state and local governments and among private businesses to protect Americans' health and safety" during the pandemic.
The statement details an expedited, seven-day antitrust procedure and provides guidance to collaborating businesses.
"There are many ways firms, including competitors, can engage in procompetitive collaboration that does not violate the antitrust laws," the agencies said in the joint statement.
While the U.S. agencies agreed to consider "exigent circumstances" during the health crisis, they also stressed that ordinary antitrust violations, such as price fixing or market allocation, would still be prosecuted.
Attorney David Meyer, a partner at Morrison & Foerster's Washington, D.C., office, told Corporate Counsel on Wednesday that while this is good news for companies that want to collaborate to produce needed goods faster or distribute them more efficiently, he would urge some caution.
"I think each situation still needs to be evaluated by counsel," he said. "These are good tools to use, but they are not a blank check."
It was not immediately known if the coalition had gone through any antitrust process, and attempts to reach some coalition leaders for comment were not immediately successful.
Under the health care coalition's stated principles, "Everyone participates for the benefit of the country only—with open cooperation and sharing. Nobody is paid for coalition work, without exception."
The coalition was formed by leaders from the Mayo Clinic, health care consultants Leavitt Partners, and the Massachusetts Institute of Technology.
It is being coordinated by The MITRE Corp., a nonprofit that manages federally funded research and development centers supporting several U.S. government agencies.
"Applying real-time data analytics and best practice guidance to a pandemic can flatten the curve of infection and change its course, as seen with Ebola and H1N1," said Dr. Jay Schnitzer, MITRE's chief technology and medical officer, in an article for Healthcare IT News.
"The business and research communities have mobilized to address COVID-19 and give this data analysis to the health care system leaders and public health officials to make evidence-based decisions that can save lives," he also said.
The coalition is soliciting other organizations to join its ranks. Its web page says it needs help with "information and/or data, analytics and actions."
Its 19 partners so far are Amazon Web Services, Arcadia.io, athenahealth Inc., Buoy Health Inc., CommonWell Health Alliance, Epic Systems Corp., HCA Healthcare, Intermountain Healthcare, Laboratory Corp. of America Holdings, Leavitt Partners, MassChallenge Inc., Mayo Clinic, Microsoft Corp., MITRE Corp., nference Inc., Oura, Rush University System for Health, Salesforce.com Inc. and the University of California Health System.
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