On April 9, 2007, the Department of Justice (“DOJ”) approved a trucking trade association’s plan to conduct a benchmarking survey of operational and financial data regarding small- and medium-sized trucking companies. The approval, which came in the form of a Business Review Letter from DOJ’s Antitrust Division, stated that DOJ would not challenge the activities of the National Association of Small Trucking Companies (“NASTC”) and Bell & Co. in collecting and reporting the information. NASTC and Bell & Co. propose to share the information collected with both respondents and other parties, and use the results to craft industry best practices. In approving the NASTC and Bell & Co. plan, DOJ recognized the potential competitive benefits to consumers stemming from the use of benchmarking and the adoption of industry best practices. Assistant Attorney General Thomas O. Barnett stated that “such surveys can benefit consumers when industry members use information derived from such surveys to gain efficiencies and price their products or services more competitively.” Assistant Attorney General Barnett also noted that the potential for anticompetitive harm was reduced by certain safeguards proposed by NASTC and Bell & Co. These safeguards include the collection of the information by a third party, the reporting of only aggregated data that is at least three months old, and the inclusion of data only where the survey obtained at least five respondents.
The sharing of statistical and operational information among trade association members who are also competitors may sometimes raise serious antitrust concerns if that information is used in an anticompetitive way. DOJ and the Federal Trade Commission have previously advised that the collection and reporting of price and price-related statistical data is permissible, provided that the following safeguards are employed: (1) the information is collected by a third party; (2) the information is at least three months old; (3) at least five participants respond to any category for which data is provided; (4) the information is provided in the aggregate, so that any individual participant’s response cannot be determined; and (5) no participant’s data will represent more than 25 percent of any statistic, on a weighted basis. The April 9, 2007 Business Review Letter affirms this prior guidance and also indicates DOJ’s approval of the use of benchmarking information in the creation of industry best practices.