Remarks

The American Bar Association, Section of Antitrust Law, Workshop on "Joint Ventures and Strategic Alliances: The New Federal Antitrust Competitor Collaboration Guidelines", J.W. Marriott Hotel

Washington, D.C.

Date:
By: 
Orson Swindle, Former Commissioner

Good morning to all of you attending this workshop on the draft Antitrust Guidelines for Collaborations Among Competitors. I regret that out-of-town travel has prevented me from being here to listen to the insights that you bring to bear on the draft Guidelines. But I'm delighted that the miracle of not-so-modern technology has enabled me to share with you a few thoughts about the Guidelines. For my next "remote appearance," I am contemplating morphing into a PowerPoint presentation. Stay tuned . . .

The draft Guidelines that the FTC and the Department of Justice unveiled early last month are the culmination of many months of intensive -- and in my view extremely fruitful -- collaboration between the two antitrust agencies. Through this document, we've tried to provide the business community, the bar, and the general public with insights into how we analyze collaborative arrangements. These arrangements seem to be cropping up with greater frequency in our increasingly global, increasingly high-tech economy. Some elements of the Collaboration Guidelines draw upon the wisdom and experience we've accumulated under the Horizontal Merger Guidelines. The new Guidelines, however, also make it clear that certain aspects of competitor collaborations -- which can differ markedly from mergers in important ways -- will be subject to analytical principles that differ in some significant respects from the principles underlying the Merger Guidelines. For example, the new Guidelines note the continuing applicability of the per se rule to certain agreements. At the same time, the Guidelines lay out factors that help us understand when firms whose merger might have been challenged may pass legal muster by designing a more limited collaboration.

Since previous speakers likely have delved into the nuances of the Collaboration Guidelines in considerable detail, I just want to highlight one or two of the many features of the Guidelines that I find commendable. First, these Guidelines follow an approach similar to that taken by other guidelines and policy statements jointly promulgated by the FTC and the Justice Department in recent years. They do not try to furnish a detailed, prescriptive road map on how to conduct collaborative activities among competitors under the antitrust laws. Nor do they attempt to anticipate and answer every question that might arise concerning such arrangements. In other words, they do not presume or aspire to accomplish the impossible. Instead, the Guidelines seek to furnish assistance to businesses and their lawyers by distilling important principles from antitrust case law and describing the general outlines of the analytical approach the agencies follow. I strongly believe that it is not the province of government to try to provide businesses with a detailed rundown of how the law applies in every circumstance. Rather, it is up to individual firms and their legal counsel to determine how general principles of the law, as summarized and illustrated by the Guidelines, apply to their particular businesses. One of the things I like about the Guidelines is that they faithfully reflect this viewpoint.

I also hope that firms and their legal advisors will get considerable mileage from the ten Examples in the Appendix to the Guidelines, which cover some of the key issues raised by the draft. I found the Examples -- with their application of relevant principles to concrete business situations -- particularly helpful. I hope that all readers of the Guidelines, especially business executives and decision-makers, will find the Examples similarly useful.

As you no doubt know, we have asked for public comments on the draft Collaboration Guidelines; the public comment period will run through January 5, 2000. I eagerly look forward to receiving comments on the draft. My sense is that the agencies did a good job, and I want to personally acknowledge the superb work of Susan DeSanti, Bill Cohen, Gary Zanfagna, and their FTC colleagues. Nevertheless, comments from business, academia, the bar, and the general public are likely to identify some aspects of the Guidelines that we can improve before they are made final. Private sector input is vital to this process. I encourage your comments. I guarantee that we will pay careful attention to what we hear from those for whom we work -- the taxpayers.

I greatly appreciate the opportunity you've given me to address this workshop.