Talking to colleagues in your sector and sharing information B2B is common business practice. Where information is shared between businesses as part of a specific project, then any antitrust risks are generally determined by the overall project risks. Where information is shared outside the context of a specific project, the antitrust risks will depend upon a number of factors. These are:
• Market structure: if you operate in a market with a high concentration of suppliers and low concentration of buyers, and there are high barriers to entry (e.g. substantial start-up costs or essential IPR), this will increase the antitrust risks of sharing information.
• Market stability: sharing historic information is generally less risky than sharing current or future information. However, in stable markets or ones which tend to follow repeating cycles, historic data can be a good indicator of current and future data. Therefore, exchanging even historic data can be problematic because it enables competitors to predict future data with relative accuracy.
• Frequency of exchange: ongoing and frequent exchange of information is riskier than occasional and infrequent exchange. Tools (for example, electronic platforms) which facilitate easy and low cost information flows have the potential to give rise to greater risks because they enable frequent exchange of data.
• Accuracy of data exchanged: is your market one in which prices are subject to privately negotiated discounts? If so, then transparency or information sharing on list prices will be less risky than if the price data is accurate.
• Accessibility of data: if the information is being shared (or can be accessed) by both suppliers and purchasers, that is less likely to be problematic than sharing amongst, or access by, only either the suppliers or purchasers.
We frequently come across documents or emails which suggest that one or more of the parties exchanging information might wish to stabilise or sanitise market conditions. References of this sort substantially increase the antitrust risks.
If you are interested in these issues, please do not hesitate to contact John Cassels at email@example.com.