In recent years, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) have revisited their antitrust enforcement priorities, directly implicating trade association activities. This trend has continued under the new presidential administration, as authorities are openly scrutinizing association conduct.
On Feb. 3, 2023, the DOJ withdrew three longstanding policy statements it deemed “overly permissive on certain subjects, such as information sharing.” Under the now-withdrawn guidance, sharing of cost or price information was considered within an antitrust “safety zone”—meaning authorities were unlikely to bring enforcement actions—if the data were managed by an independent third party; at least three months old; and sourced from at least five firms, with no single provider contributing more than 25 percent. Outputs also had to be aggregated.
While the safe harbors never provided complete immunity, they gave some indication to participants regarding where the line would be drawn by enforcers. So, what now?
Andrew Ferguson, the new FTC chairman under President Donald Trump, has repeatedly emphasized the need for improved predictability when it comes to antitrust enforcement. However, DOJ is litigating several cases involving information sharing, which may delay the issuance of any new guidance for some time. Additionally, private plaintiffs continue to use association participation as circumstantial evidence of collusion.
So, for now, parties must fall back on case law alone, which involves a more fact-specific inquiry than explicit safe harbors. Information exchanges are judged under the rule of reason—courts balance procompetitive benefits against anticompetitive harm. As such, the efficiencies enabled by any program need to be carefully considered.
Since the administration change this year, FTC and DOJ have repeatedly highlighted concerns with non-price competitive harms occurring via associations.
First, both FTC and DOJ are focused on conduct that undermines the ability of media outlets to differentiate based on their content and political viewpoint. The FTC obtained a settlement in a merger between media buyers that prohibited the combined firm from coordinating with others to steer advertising based on its own political preferences—something the FTC alleged occurred previously via an industry group. Similarly, DOJ filed a statement of interest in a private litigation supporting plaintiffs that alleged news outlets unlawfully colluded to suppress opinions during COVID-19 through an industry “partnership.”
Second, the DOJ has been outspoken against association collusion that suppresses innovation competition. In July 2025, Deputy Assistant Attorney General Dina Kallay warned that DOJ is scrutinizing “product fixing,” which involves competitors agreeing on features, variety or design, and, thereby, undermining those dimensions of competition. Similarly, in a September speech, Kallay renewed support for intellectual property (IP) holders chosen by standard setting organizations. The current DOJ takes the position that disputes over whether an IP holder is licensing on fair, reasonable and non-discriminatory (FRAND) terms are contractual matters, not antitrust issues, and warns that licensees should not collude in such organizations to disadvantage IP holders and disincentivize innovation.
Lastly, the FTC obtained specific relief from an association, as well as its members, in August. The FTC was investigating whether truck manufacturers and their association unlawfully cooperated on addressing California emissions standards that exceeded federal mandates. Although the collaboration was ultimately mooted after the new administration withdrew the federal preemption waiver that had permitted the state law to take effect, the FTC obtained letter agreements from the companies and the association when closing its investigation— stating that each would refrain from future agreements involving supply or emissions as a dimension of product quality competition.
Information sharing can remain pro-competitive, but safeguards should be assessed on a case-by-case basis. The withdrawn safe harbors are often best seen as starting points for compliance, given current government scrutiny. Now more than ever, associations and members should ensure that safeguards exist to meaningfully mitigate any anticompetitive effects. Consideration should be given to the age of shared data and the degree of aggregation. To the extent that associations and members are using software or similar programs to share information, they should understand how they work and what type of data is collected and shared. Addressing these practical realities may help defend information sharing, regardless of where any new enforcement line is drawn.
Non-price topics are not immune from antitrust scrutiny. Associations should not assume that, because certain activities are taken in the spirit of industry improvement, they are devoid of potential anticompetitive impact. If competitors can choose different paths to market their respective products, collective efforts would likely preserve their independent decision-making.
Clearly articulate pro-competitive benefits. Whether dealing with price or non-price collaborations, it is always a best practice to reflect on and memorialize the procompetitive rationale at the outset. Defining not only how a collaboration will operate day –to day but also the pro-competitive benefits an activity will achieve, is a key first step and can mitigate subsequent skepticism of those benefits or the overall rationale for competitor dealings.
This article originally appeared on ASAE’s Center for Association Leadership website. OSAP thanks ASAE for providing valuable content that supports the association industry and assists nonprofit organizations in serving their communities throughout the country. This article was written by Justin Hedge, an antitrust and competition law shareholder in the Washington, D.C. office of Greenberg Traurig. He leverages years of experience before the Federal Trade Commission (FTC), Department of Justice (DOJ) Antitrust Division and state attorneys general to advise clients on the full range of antitrust issues and investigations.