The U.S. Department of Justice’s (DOJ) proposed settlement with Agri Stats, Inc. provides the clearest guidance on lawful competitor information exchanges since the DOJ and Federal Trade Commission (FTC) withdrew their longstanding healthcare antitrust policy statements in 2023. While the case arose from the meat-processing industry, its implications extend far beyond agriculture. On May 7, 2026, the DOJ Antitrust Division, joined by attorneys general from six states, filed the proposed settlement against Agri Stats, a data-sharing and consulting company that collected non-public price, output, and cost data from competing broiler chicken, pork, and turkey processors and sold detailed reports back to industry participants.
For hospitals, health systems, physician groups, pharmacies, diagnostic laboratories, and the management companies and trade associations that support them, the settlement provides an important roadmap for structuring lawful competitor information exchanges in today’s heightened antitrust enforcement environment. The “information exchanges” discussed here refer to competitor data-sharing arrangements, compensation surveys, GPO and PBM data feeds, and pricing benchmarks, not clinical health information exchange networks that share patient records for treatment purposes.
Why a Chicken Case Matters to Healthcare
For nearly three decades, healthcare providers structured their information-sharing arrangements around the 1996 Statements of Antitrust Enforcement Policy in Health Care issued by the DOJ and the FTC. Under those policy statements, the agencies stated they would not challenge a written survey of prices, wages, salaries, or benefits, absent extraordinary circumstances, if three conditions were satisfied: (i) the survey was managed by a third party; (ii) the shared data were more than three (3) months old; and (iii) at least five (5) participants reported the data underlying each disseminated statistic, with no single participant accounting for more than twenty-five percent (25%) of any statistic, and the information was sufficiently aggregated that recipients could not identify the prices charged or compensation paid by any particular provider.2
In February 2023, the DOJ withdrew its support for these healthcare policy statements, characterizing them as “outdated” and stating that the statements no longer served their intended purpose of providing clear guidance on healthcare competition issues.3 The FTC followed suit, withdrawing the statements in July 2023.4 Neither agency has formally replaced this guidance, leaving healthcare organizations without a defined safe harbor for information-sharing practices. Though the underlying statutes did not change, the safety zone stakeholders had relied on disappeared, and information exchanges are now evaluated on a case-by-case basis.
In practical terms, that left a planning vacuum. Compensation benchmarking, nurse and physician wage surveys, GPO data, and pharmacy benefit manager (PBM) and specialty pharmacy data exchanges all continued without an applicable safe harbor and amidst an enforcement posture that is more skeptical of competitor data sharing. The Agri Stats settlement is the first detailed look at what the agencies now expect from a compliant third-party data hub to look like.
What the Agri Stats Settlement Requires
Using a Third Party Does Not Insulate Information Sharing from Antitrust Risk.
Agri Stats operated as a third-party data aggregator, a role analogous to healthcare benchmarking firms, compensation survey vendors, and group purchasing organization analytics platforms. The DOJ made clear that routing competitively sensitive data through an intermediary does not protect participants from antitrust liability when reports allow recipients to identify competitors or coordinate behavior.
Aggregation and anonymization must be genuine.
The DOJ alleged that despite Agri Stats’ purported aggregation and anonymization, report recipients could reverse-engineer the data to identify their competitors’ pricing and raise prices accordingly. The proposed settlement requires Agri Stats to stop reporting individual sales data by ceasing to publish “participant lists,” competitor “rankings,” or “flags” that reveal how many contributors stand behind a given metric.
Exclusivity signals anticompetitive risk.
A critical factor in the Agri Stats case was that Agri Stats used pricing terms and other means to discourage or prevent non-contributors from purchasing its reports, creating an exclusive information advantage for participants that did contribute. The proposed settlement requires Agri Stats to distribute its data to all interested purchasers on reasonable and non-discriminatory terms.
Current data carries greater risk.
The former healthcare safety zone required that shared data be at least three (3) months old. Agri Stats’ reports contained current, granular pricing and production data, which facilitated real-time competitive coordination in response to real-time market dynamics. The proposed settlement requires reported data to be, on average, at least forty-five (45) days old, and data reflecting production decisions must reflect choices made at least ninety (90) days earlier.
Reported data must meet a minimum-contributor and concentration cap.
For reports covering 50% or more of U.S. sales, every aggregated or statistical value must draw on at least three contributors, with no single contributor representing more than 70% of the data. This mirrors, but relaxes, the participant-count and concentration limits from the retired 1996 safe harbor.
Key Takeaways for Healthcare Organizations
The DOJ and FTC are tightening scrutiny of information exchanges. The mere presence of a third party, aggregation, and historical data are no longer enough, on their own, to dispel concerns about anticompetitive information exchange. The agencies are looking at whether the design of the exchange actually prevents competitors from decoding rival-specific information. The label “anonymized” is not a defense if re-identification is possible. For health information exchanges that aggregate sensitive data, reports must be structured so that no participant can infer another participant’s pricing or cost structure. Healthcare organizations that sell information should confirm that their access terms do not create barriers for some competitors but not others.
Best Practices for Compliance
Healthcare organizations that participate in or operate information exchanges should consider the following:
Inventory every data-sharing arrangement.
Identify each survey, benchmark, pricing dataset, and other analytical report in which competitively sensitive price, cost, reimbursement, or compensation information is shared, directly or through a vendor.
Re-test legacy arrangements against current expectations.
Confirm that aggregation is meaningful, that contributor counts are adequate, that no single participant dominates a statistic, and that the data is sufficiently historical. Although the retired 1996 safe harbor is no longer binding, its thresholds remain a useful benchmark for the minimum safeguards regulators expect.
Audit for re-identification risk.
The central question is no longer whether data is labeled “anonymized,” but whether a knowledgeable recipient could identify a competitor from the underlying data. Rankings, participant lists, contributor counts, and thinly populated cells should be avoided.
Document the procompetitive rationale.
Be prepared to articulate the legitimate efficiency served by the exchange and how it benefits patients or consumers, not merely the participants.
Build a compliance program and govern the vendor relationship.
The proposed settlement requires Agri Stats to implement a formal antitrust compliance program and submit to monitoring. That remedy reflects Agri Stats’ own past violations, but other organizations should still adopt proportionate policies, training, and oversight for the vendors and trade associations on which they rely.
How Frier Levitt Can Help
Information exchange and benchmarking remain lawful and, in many cases, beneficial for healthcare organizations and the patients they serve. But the bright-line safe harbor the healthcare industry once relied on is gone, and Agri Stats shows that the agencies now expect the design of an exchange, not just its label, to prevent competitor coordination.
Because that determination is now fact-specific and made on a case-by-case basis, it calls for the judgment of counsel experienced in healthcare antitrust law, not a generic compliance checklist. Healthcare stakeholders should inventory their data-sharing arrangements, reassess and, where appropriate, redesign them against the identifiability principles the settlement reflects, and confirm that any third-party administrator functions as a genuine firewall. Doing so with experienced counsel helps providers, pharmacies, laboratories, and the organizations that serve them continue to benchmark and collaborate while managing the heightened antitrust risk that has replaced the comfort of the old safety zone.
For guidance on structuring or auditing compensation surveys, pharmacy data programs, or other competitor information exchanges in light of the Agri Stats settlement and the withdrawn policy statements, contact Frier Levitt for help navigate the evolving antitrust landscape.
References:
- DOJ Press Release, “Justice Department Requires Agri Stats to End Exchange of Competitively Sensitive Information Among Nation’s Largest Meat Processors” (May 7, 2026): https://www.justice.gov/opa/pr/justice-department-requires-agri-stats-end-exchange-competitively-sensitive-information ; Proposed Final Judgment, United States et al. v. Agri Stats, Inc., No. 0:23-cv-03009-JRT-JFD (D. Minn. May 7, 2026): https://www.justice.gov/atr/media/1439906/dl?inline
- DOJ/FTC, Statements of Antitrust Enforcement Policy in Health Care (Aug. 1996) (Statement 6 information-exchange safety zone): https://www.ftc.gov/sites/default/files/documents/reports/revised-federal-trade-commission-justice-department-policy-statements-health-care-antritrust/hlth3s.pdf
- DOJ Press Release, “Justice Department Withdraws Outdated Enforcement Policy Statements” (February 3, 2023), available at: https://www.justice.gov/archives/opa/pr/justice-department-withdraws-outdated-enforcement-policy-statements
- FTC Press Release, “Federal Trade Commission Withdraws Health Care Enforcement Policy Statements” (July 14, 2023), available at: https://www.ftc.gov/news-events/news/press-releases/2023/07/federal-trade-commission-withdraws-health-care-enforcement-policy-statements
