Justice Department Issues Guidance On The Use Of Arbitration And Launches Small Business Help Center

The Antitrust Division of the Department of Justice announced the publication of two new resources on its website today. 

First, the division issued updated and supplemental guidance on the use of arbitration, which includes case selection criteria to help identify Antitrust Division cases that would benefit from the application of arbitration.  This guidance reflects the Antitrust Division’s experience using arbitration to resolve a civil antitrust lawsuit challenging Novelis’s proposed merger with Aleris Corporation.  The updated document also contains guidance regarding the arbitration agreement, the decision whether to file a complaint in federal district court before the matter is referred to arbitration, arbitrator selection, arbitrator compensation and cost shifting, and the training of Antitrust Division staff on the use of arbitration.

Second, the division launched a new web resource to provide targeted antitrust information and guidance to small business owners. The new “Antitrust and Your Small Business” section of the division’s website contains user-friendly guidance and links to DOJ materials on antitrust “hot topics” relevant to small businesses, including tips on identifying potential anticompetitive conduct that harms small businesses, tips on avoiding and reporting criminal antitrust violations, requirements for applying to the criminal leniency program, tips on avoiding antitrust issues related to hiring and management, materials on COVID-19 and disaster relief, guidance on information sharing and trade associations, and more.

“Earlier this year, the Division prevailed in the first-of-its-kind arbitration of a merger challenge.  The new guidance crystallizes our learning from that case and outlines how that learning may be applied to future matters,” said Assistant Attorney General Makan Delrahim of the Department of Justice’s Antitrust Division.  “Additionally, I am gratified that we are addressing the needs of small businesses in a targeted way.  As we have repeatedly said, the antitrust laws are not solely applicable to the biggest businesses, but are meant to protect consumers, workers, and small businesses as well. Given these unprecedented times and the increased visibility of antitrust in the business community, the Antitrust Division hopes these resource pages will help small business owners better understand what the antitrust laws are, examples of conduct they prohibit, and ways to report potential violations.”

The arbitration guidance is available on the Antitrust Division’s website (/media/1104421/dl?inline) and will be published in the Federal Register.

The Antitrust Issues and Your Small Business resource pages can be accessed at www.justice.gov/atr/antitrust-issues-and-your-small-business.