As companies consider their responses to tariffs, including potential price and supply chain adjustments, antitrust enforcers are scrutinizing competitor conduct. Recent enforcement warnings from both FTC and DOJ officials signal a heightened focus on price competition and other potentially exclusionary conduct. As outlined below, companies should assess antitrust risks, implement compliance safeguards, and document independent decision-making when responding to tariffs.
Antitrust Enforcers Warn of Increased Scrutiny, Particularly Around Price Coordination
As companies consider how to respond to tariffs, FTC Chairman Andrew Ferguson recently warned that the agency “will be watching closely to make sure American companies are vigorously competing on prices” and that “necessary tariffs should not be interpreted as a green light for price fixing or any other unlawful behavior.”1 Similarly, Roger Alford, a senior DOJ Antitrust Division official, recently warned “there is a risk of anticompetitive behavior responding to the high tariffs, and that is dynamic pricing behavior of the remaining competitors.”2
These warnings should come as no surprise given that antitrust enforcers historically watch for anticompetitive conduct during times of economic change or uncertainty. For example, in response to supply chain disruptions during the COVID-19 pandemic, the FTC and the DOJ’s Antitrust Division released a joint statement warning that some companies may use the pandemic “as an opportunity to subvert competition or prey on vulnerable Americans.”3 Both agencies emphasized that they “stand ready to pursue civil violations of the antitrust laws, which include agreements between individuals and business to restrain competition through increased prices, lower wages, decreased output, or reduced quality as well as efforts by monopolists to use their market power to engage in exclusionary conduct.”4 And both enforcers followed up by issuing warning letters, pursuing enforcement actions, and reporting to Congress, primarily when companies allegedly engaged in price gouging or deceptive acts and practices.5
More recently, in April 2025, Antitrust Division official Roger Alford similarly suggested that egg producers may have used avian flu as an opportunity to increase egg prices, commenting that when the DOJ’s Antirust Division recently began to investigate egg prices, the cost dropped from $8 per dozen to $3 in just days.6 While that investigation remains ongoing, Alford highlighted the risk of similar pricing behavior in markets where tariffs might impact competition: “If there’s high tariff walls for foreign competition and then you go from only three competitors to two competitors, then you have dynamic pricing risk associated with that.”7 As a result, he explained that antitrust enforcers “really need to be careful to watch for that when [doing] market share calculations,” and they will have to assess “if the tariffs will, in any way, shape or form, impact” that analysis.8
Dee-K Enterprises v. Heveafil: Private Plaintiffs Are Also Likely To Scrutinize How Companies Respond to Tariffs, Even For Foreign Conduct
Class-action plaintiffs and other private plaintiffs also have not hesitated to file antitrust challenges when trade practices are allegedly used in anticompetitive ways. For example, in the seminal Dee-K Enterprises v. Heveafil case at the intersection of trade and antitrust law, rubber-thread purchasers alleged a price-fixing conspiracy in response to an antidumping order by the US Department of Commerce.9 Responding to dumping accusations, Malaysian producers allegedly “met with a Malaysian government official and agreed to fix rubber-thread prices throughout the world,” and those producers were later joined by other rubber-thread producers throughout Southeast Asia.10
After an eight-day trial, the jury found that while “one or more of the producers engaged in a conspiracy to fix prices that was intended to affect United States commerce, that conspiracy had no ‘substantial effect’” on United States commerce.11 On appeal, the Fourth Circuit affirmed and held that plaintiffs failed to meet the Hartford Fire test for Sherman Act liability for overseas conduct. Although “the producers sold rubber thread in the United States to United States consumers,” the Fourth Circuit explained that the alleged “links to the United States are mere drops in the sea of conduct that occurred in Southeast Asia (and around the world).”12 In particular, “the rubber-thread conspiracy was formulated and furthered at numerous meetings, all of which took place in Southeast Asia, with attendees, all of whom worked for Southeast Asian firms, and who directed their activity to the global market” and “not one of the conspirators’ many meetings took place in the United States.”13
While the rubber-thread producers prevailed, the Fourth Circuit provided a general caution that if foreign conduct violates US antitrust laws, “the federal courts will provide redress for those who can show that the harm of which they complain had a substantial effect on our commerce.”14
Procompetitive and Lawful Collaborations: From Joint-Ventures to Certain Types of Information Sharing
Despite the likelihood of antitrust scrutiny in the context of tariffs, antitrust enforcers have long recognized that “competitors interact in many ways, through trade associations, professional groups, joint ventures, standard-setting organizations, and other industry groups,” which is often “not only competitively benign but procompetitive.”15
Indeed, the joint statement from the DOJ’s Antitrust Division and the FTC in response to the COVID-19 pandemic outlined several types of procompetitive collaborations in response to supply chain disruptions:
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Most joint-purchasing arrangements, such as those designed to increase the efficiency of procurement and reduce transaction costs, generally do not raise antitrust concerns;
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When firms collaborate on research and development, this “efficiency-enhancing integration of economic activity” is typically procompetitive;
- Sharing technical know-how, rather than company-specific data about prices, wages, outputs, or costs, may be “necessary to achieve the procompetitive benefits of certain collaborations”; and
- Antitrust laws generally permit lobbying the federal government to discuss strategies on responding to price and supply chain issues, “insofar as those activities comprise mere solicitation of governmental action with respect to the passage and enforcement of laws.”
Potential Red Flags for Enforcers: Price Coordination and Other Conduct Potentially Undermining Competition
While most competitor collaborations are procompetitive, potential antitrust risks may arise if competitor interactions lead to coordinated behaviors like price fixing, output restrictions, or market allocation.17 These types of behaviors are generally viewed by antitrust enforcers as inherently anticompetitive and treated as a per se violation.18 Even the perception of such conduct—whether through formal industry organizations or informal meetings—can raise red flags for enforcers if appropriate safeguards are not implemented.
By contrast, other types of agreements that are not viewed as inherently anticompetitive—such as information sharing, exclusivity agreements, and joint ventures—are generally examined under a flexible “rule of reason” standard that looks at the overall competitive effect of the business practice. Despite this flexible standard, a common area of concern for antitrust enforcers “is exchanging price or other sensitive business data among competitors, whether within a trade or professional association or other industry group.”19 As the FTC has explained, “any data exchange or statistical reporting that includes current prices, or information that identifies data from individual competitors, can raise antitrust concerns if it encourages more uniform prices than otherwise would exist.”20 Similarly, while exclusivity arrangements and joint ventures usually enhance competition and benefit consumers, antitrust enforcers may be wary of agreements that seemingly impede new competitors from breaking into or expanding in a particular product or geographic market.21
Antitrust Compliance and Risk-Mitigation Strategies
As companies respond to tariffs, they should proactively consider any antitrust risks, implement safeguards, and document their independent and procompetitive decision-making rationale.
- Consider Antitrust Risks Early. Engaging antitrust counsel early in the tariff-response process and maintaining ongoing legal oversight throughout any competitor collaborations will help minimize antitrust risks, especially since antitrust analysis is usually industry specific, fact sensitive, and nuanced.
- Don’t Ignore Global Implications. Ensure compliance with antitrust laws in all relevant jurisdictions, as standards and enforcement approaches can vary significantly between countries. At the same time, there may be important jurisdictional considerations, such as in the Dee-K Enterprises v. Heveafil case discussed above where the Fourth Circuit affirmed a judgment for the manufacturers because the purchaser plaintiffs failed “to prove that the foreign conduct had a substantial effect on United States Commerce.”22
- Implement Safeguards. Training employees, updating antitrust compliance policies, and limiting higher-risk conduct is essential for mitigating risks. In particular, when dealing with competitors, implement safeguards that address how employees can interact with competitors (e.g., trade associations, conferences, and informal communications) and the types of information that can be shared (e.g., competitively sensitive information vs. historical and aggregated information).
- Document the Independent Decision-Making Process. Contemporaneous and ongoing documentation of business justifications and procompetitive benefits associated with pricing decisions and other business practices can be crucial in the event of an antitrust inquiry. This includes documenting any internal analysis and decision-making showing that pricing and other business decisions were independently reached.
Conclusion
While it remains to be seen what enforcement investigations and litigation may arise from tariff-related business practices, both DOJ Antitrust Division and FTC officials have made clear that these issues are on their radar and enforcers have historically taken action when they perceive competition-related misconduct in times of economic change. Companies that implement robust safeguards now will be better positioned to navigate both the competitive challenges of tariff adjustments and the regulatory scrutiny that often accompanies them.
1 Andrew Ferguson (@AFergusonFTC), X (Apr. 3, 2025, 2:34 PM), https://x.com/AFergusonFTC/status/ 1907864397822787768.
2 Khushita Vasant, US DOJ’s Alford Warns of Risk of Anticompetitive Behavior in Response to Tariffs, MLex (Apr. 4, 2025) (“DOJ’s Alford Warns of Risk of Anticompetitive Behavior”), https://www.mlex.com/mlex/trade/articles/2321273/us-doj-s-alford-warns-of-risk-of-anticompetitive-behavior-in-response-to-tariffs.
3 Joint Antitrust Statement Regarding COVID-19, Dep’t of Justice and Fed. Trade Comm’n (Mar. 2020, Updated May 2025), https://www.justice.gov/atr/joint-antitrust-statement-regarding-covid-19
4 Id.
5 Coronavirus Response: Enforcement Actions, Fed. Trade Comm’n (last viewed June 11, 2025), https://www.ftc.gov/news-events/features/coronavirus/enforcement.
6 Vasant, supra note 2.
7 Id.
8 Id.
9 Dee-K Enters., Inc. v. Heveafil Sdn. Bhd., 299 F.3d 281, 284-85 (4th Cir. 2002). White & Case LLP served as counsel for the defendants at trial and on appeal.
10 Id.
11 Id. at 283. In Hartford Fire Ins. v. California, the Supreme Court stated that “it is well established that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.” 509 U.S. 764, 796 (1993) (citations omitted).
12 Heveafil, 299 F.3d at 295.
13 Id.
14 Id. at 296.
15 Dealings with Competitors, Fed. Trade Comm’n: Competition Guidance, Guide to Antitrust Laws, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-competitors (last visited June 6, 2025).
16 Joint Antitrust Statement Regarding COVID-19, supra note 3 (internal citations omitted).
17 Dealings with Competitors, supra note 15.
18 Id.
19 Spotlight on Trade Associations, Fed. Trade Comm’n: Competition Guidance, Guide to Antitrust Laws, Dealings with Competitors, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/dealings-competitors/spotlight-trade-associations (last visited June 6, 2025).
20 Id.
21 Exclusive Supply or Purchase Agreements, Fed. Trade Comm’n: Competition Guidance, Guide to Antitrust Laws, Single Firm Conduct https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/single-firm-conduct/exclusive-supply-or-purchase-agreements (last visited June 6, 2025).
22 299 F.3d at 296.
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