In an article for Law360, Lawrence Silverman, Richard Brosnick, and Evelina Gentry explained the antitrust setbacks that suppliers may face in a constrained market as a result of the COVID-19 pandemic.
“In making these decisions, companies should be aware that, even in times of product shortages, the antitrust laws still apply, and, in fact, such constrained supply conditions could create market power and restrict a supplier's lawful alternatives. As a result, affected suppliers should take precautions to ensure that they do not inadvertently violate antitrust laws.
To the extent that product allocation requires coordination among competitors, suppliers should take advantage of the expedited review processes now offered by the antitrust regulators.”