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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.

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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

Patricia M. Wagner, Epstein becker green, health care, life sciences

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements