As organizations are working to respond to the 2019 novel coronavirus (known as “COVID-19”), the U.S. Department of Justice (“DOJ”) issued a reminder that emergency efforts do not negate the requirement to adhere to the antitrust laws, and that the DOJ stands ready to respond to market participants who may be using the public health emergency as an opportunity to violate those laws. The DOJ noted specifically that entities that “fix prices or rig bids for personal health protection equipment . . . could face criminal prosecution.” The DOJ also warned against organizations allocating among themselves consumers of public health products. It is reasonable to assume that, in this context, “public health products” will be interpreted broadly.
The DOJ’s reminder is consistent with the agency’s internal primer on price fixing, bid rigging, and market allocation, which states that “consumers have the right to expect the benefits of free and open competition—the best goods and services at the lowest prices.” A public health emergency simply does not change that standard.