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Business Review Letters — Antitrust Clearance from the Department of Justice

Before engaging in a business practice, individuals and companies may seek the view of the U.S. Department of Justice on the legality of the business practice under federal antitrust law. The procedure, known as a Business Review, allows persons to ask the Department of Justice for a statement of its current enforcement intentions. Although the Department of Justice is not authorized to provide advisory opinions to private parties, its business review procedure does allow such parties to seek a statement of present enforcement intentions.

The Business Review procedure is set forth at 28 C.F.R. 50.6 and is described on the website for the Department of Justice. Past business review letters are posted on the website. Typically, a business review letter will describe the information provided to the Department of Justice regarding the proposed business conduct, state whether the Department would challenge the proposed conduct, and note that information provided in seeking the statement of enforcement intentions will be made public except to the extent that confidential treatment is warranted under the business review procedure.

Topics covered by business review letters have varied from joint negotiation on behalf of cable systems of the purchase of programming to agreements among fishermen in a cooperative for sharing a catch limited by government regulation. The Department of Justice has noted that review is most often sought for proposed joint ventures and for proposals to share business information. For these more usual requests, the Department has stated that it will use its best efforts to have a response within 60 to 90 days if the request is supported with sufficient information.

Categories of information needed to support a “quick response” request to Department of Justice on proposed joint ventures and information exchanges are stated on the Department’s website and include information describing the proposed conduct and any efficiencies or other benefits it may have.