Seeking Opinions on Potential Conduct from the Antitrust Division of the Department of Justice
The Antitrust Division of the Department of Justice (“DOJ”) has a process that allows organizations to seek written opinions from the agency on whether proposed conduct will violate the antitrust laws. (The Federal Trade Commission’s advisory opinion process will be described at a later time.)
DOJ’s business review letter process provides a mechanism for organizations to request that DOJ review, from an antitrust perspective, a proposed joint venture or other conduct, and receive a response from DOJ on how the agency “may respond” should the proposed activity take place. The length of time it will take DOJ to respond to such a request is dependent on both the complexity of the arrangement described and how detailed the information provided by the organization requesting the review is. Upon review, DOJ will issue a business review letter with one of the following three responses: (i) DOJ “does not presently intend to bring an enforcement action” if the proposed conduct goes forward, (ii) DOJ declines “to state its enforcement intentions,” or (iii) DOJ will sue the parties if the proposed conduct goes forward.
After issuing its opinion, DOJ will make such letters public(withholding competitively sensitive information, if appropriate). Even if an organization determines that it will not request an opinion from DOJ regarding proposed conduct, often examining other business review letters that have been issued can be instructive.