Dulani, Ebner Detail Ways to Mitigate Antitrust Risk for Public-Private Joint Ventures in Law360

01.25.2024

Stinson LLP Partners Jeetander Dulani and Susan Ebner co-authored an article for Law360, "A Potential Proactive Tool For Public-Private Joint Ventures," providing insight on the National Cooperative Research and Production Act (NCRPA) and the ways it helps companies reduce antitrust risks arising from competitor collaborations.

"Companies would be remiss to ignore the current regulatory environment in their rush to work together to seek, secure and spend government funding under the BIL and legislation like it, such as the CHIPS and Science Act and the Inflation Reduction Act," the attorneys write. "Protections are available for research and development joint ventures, production joint ventures, and standard-developing organizations engaged in collaborative activity that primarily benefits the public."

For public-private partnerships pursuing government funding, the attorneys say utilizing the NCRPA is a better solution than previously suggested Federal Trade Commission (FTC) advisory opinions and Department of Justice (DOJ) business review letters as workarounds for industry working groups and trade associations engaged in environmental, social and governance collaboration. They also highlight antitrust protections groups can secure by filing an NCRPA written notice in advance to the DOJ and FTC.

"The NCRPA registration provides joint ventures with some protection from unwarranted antitrust investigations and opportunistic antitrust lawsuits. That protection lets these innovative joint ventures fully focus on delivering products, solutions and technologies that the government recognizes need to be developed," the attorneys write. "Until there is additional guidance on how competitor collaboration efforts will be treated under federal antitrust laws, joint ventures seeking federal funding for public-private projects should proceed with caution."

Dulani's practice includes competition disputes, class actions, mergers and acquisitions, government investigations and other complex litigation. He represents clients before the DOJ and FTC in merger and conduct investigations, as well as False Claims Act-related litigation, and advises on antitrust risk and compliance and on vertical business arrangements.

Ebner has deep and wide-ranging knowledge of government contracting matters and litigation. She is co-chair of Stinson's Government Contracts & Investigations practice group, where she represents large and small businesses, nonprofits and consortia clients across the spectrum of public contracting and grant matters, including new and emerging issues in government contracts, grants and other agreements.

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