On April 13, 2020, the Antitrust Division of the US Department of Justice (DOJ) and the US Federal Trade Commission (FTC) issued the “Joint Antitrust Statement Regarding COVID-19 and Competition in Labor Markets” (the Joint Statement).[1] The Joint Statement reinforces, and is consistent with, prior statements that collaborative efforts aimed at improving the nation’s ability to combat COVID-19 and to protect the health of the US population will be given substantial latitude under the antitrust laws. But the Agencies also are keen to remind businesses that antitrust enforcement remains a high priority when it comes to collusion or information sharing that may harm workers.[2] The ongoing pandemic is not a justification for coordination on hiring, wages, benefits, layoffs, or other terms and conditions of employment.

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It is not surprising to hear from our friends and clients, what about antitrust in a time of national crisis? Do competition laws matter? Are those laws in the way of what needs to be done? Will enforcement agencies be watching? Are the rules regarding competitor collaborations aimed at the crisis different than in less extraordinary times?

In fact, there is a long history of accommodation and practical thinking about the antitrust laws when the times demand it. That pragmatic approach is traceable back to the government’s role in forming a patent pool among major airplane manufacturers in the midst of World War I. The fact that these firms were competitors and that competition in peacetime would be better served by manufacturing without relying on each other’s patents, the national imperative for the U.S. to go to war with the best possible aircraft meant antitrust concerns had to give way.

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