Shifting Tariff Response Strategies: How Can Companies Avoid Antitrust Risk?

In the current economic environment, where tariffs are being discussed, proposed, and implemented, with potential significant impact across industries, companies are under pressure to rethink or adjust their pricing strategies. Recent days have seen global and domestic producers and retailers across industries announce current or planned price increases as a direct response. While businesses must continue to pursue their own objectives and profit goals, they must ensure that in changing their prices, and in their conduct and communications surrounding potential price increases, they do not violate the antitrust laws.[1]

Times of economic crisis or uncertainty, historically, have sometimes led companies to reach out to others in their industry for advice or coordination on how best to handle the changed economic environment. Unfortunately, antitrust laws do not take a holiday during challenging economic times. And DOJ and FTC officials have specifically noted that they will be on the lookout for antitrust violations in the wake of tariffs.

Companies can follow some best practices—such as making all pricing decisions independently, keeping contemporaneous records of their reasoning and basis for price changes, and avoiding communications with competitors about pricing challenges or plans—to minimize risk of antitrust scrutiny. Read on, for some practical tips for these complicated times.

Background

Over the past several months, the Trump administration has implemented significant tariff increases, notably doubling the U.S. import duties on steel and aluminum from 25% to 50%, effective June 4, 2025.[2] Earlier in the year, the U.S. imposed tariffs on goods from countries importing Venezuelan oil[3] and on most EU imports.[4] Canada, Mexico, China, and the EU have responded with retaliatory tariffs on a wide range of U.S. products.[5] Other countries, like the UK, have been negotiating with the U.S. on the details and rates of tariffs to apply.[6]

At the same time, the fate of the tariffs is being fiercely contested in court. At the time of this client alert, rulings blocking the tariffs by the U.S. Court of International Trade and the DC District Court, were paused by the U.S. Court of Appeals for the Federal Circuit.[7] Legal challenges could last for more than a year and are likely to eventually be heard by the Supreme Court.[8]

The Executive actions, and the uncertainty around the future impact on availability and cost of products, have affected supply chains, pricing strategies, and the competitive landscape across multiple industries, particularly manufacturing, construction, automotive, agriculture, and technology, among others.

Antitrust Implications

There are several ways tariffs could create market conditions that increase the risk of anticompetitive conduct. Antitrust enforcers are most likely to focus on the following types of conduct:

• Price Coordination and Signaling. Tariff-induced price volatility can create opportunities—or pretexts—for competitors to coordinate price increases, directly or indirectly. While price increases are permissible if implemented independently, they could lead to illegal conduct if competitors share confidential information regarding pricing strategy or jointly agree to impose standard price increases to address increased costs (such as through a “tariff surcharge”). In addition, statements made publicly or in investor communications about future pricing strategy adjustments due to tariffs could be scrutinized as potential price signaling. The DOJ has been taking a broad view of what kinds of pricing communications are per se illegal—and thus subject to criminal prosecution. Conversations with competitors in your industry about how to respond to tariffs in terms of pricing, even if through an industry association or other go-between, could lead to a grand jury investigation of the conduct and possible criminal charges for executives and companies.
• Price Gouging. Raising prices independently to absorb increased costs is legal, but excessively increasing prices without relation to the level of increased costs could draw scrutiny. During the COVID pandemic, firms cited supply chain challenges to justify rising prices, but many increased prices beyond costs. Price-gouging claims are generally pursued by state attorneys general (and not federal antitrust enforcers). However, the Antitrust Division has warned it is ready to act even without evidence of collusion in unfair price hikes. DOJ Antitrust Division (Antitrust Division) Principal Deputy Assistant Attorney General (PDAAG) Roger Alford stated he “won’t give people comfort to feel free to price high, as long as you do it on your own [without colluding].”[9] Recently, 36 members of Congress urged Federal Trade Commission (FTC) Chairman Andrew Ferguson to investigate and prosecute firms using tariffs as an excuse to increase prices beyond costs, noting that “President Trump’s on-again, off-again tariffs create a fertile environment for price gouging.”[10]
• Anticompetitive Information Sharing. Companies should also be aware of antitrust risks beyond pricing. In navigating the impact of tariffs, firms may feel pressured to share competitively sensitive information with competitors, which could lead to antitrust violations. For example, in 2023, DOJ sued Agri Stats Inc. for facilitating illegal information exchanges among broiler chicken, pork, and turkey processors, violating Section 1 of the Sherman Act.[11] The collection of competitively sensitive information itself gave rise to the claim. While firms can and should continue ordinary market intelligence gathering, they should avoid sharing competitively sensitive information that is current, forward-looking, disaggregated, and unnecessarily detailed.
• Collusion on Supply Allocation. Tariff disruptions may encourage competitors to engage in illegal agreements to allocate markets or customers, particularly when alternative supply sources are limited.
• Exclusionary Conduct. Companies that benefit from reduced foreign competition due to tariffs may face heightened scrutiny if they engage in exclusionary practices intended to cement or expand their market dominance. For example, while exclusive purchasing and distribution are generally permissible, such arrangements could violate antitrust laws if other firms are substantially foreclosed from competing in a market by losing access to exclusive suppliers or distributors. Other forms of potentially problematic behavior include tying, refusals to deal, or predatory pricing.
• Collaborations on Supply Chain Constraints. Collaborations to manage shortages or allocate supply, even when motivated by legitimate logistical challenges, may cross into impermissible antitrust territory if not carefully structured.

Heightened Antitrust Scrutiny During Tariffs

These shifts are drawing closer scrutiny from antitrust enforcers, including the FTC and the Antitrust Division, who are particularly focused on potential anticompetitive behavior in markets that might be disrupted. On April 3, 2025, in a social media post on X, FTC Chairman Ferguson stated that the agency “will be watching closely to ensure American companies are vigorously competing on prices” and that “necessary tariffs should not be interpreted as a green light for price fixing or any other unlawful behavior.” In addition, speaking at a conference in April, Antitrust Division PDAAG Alford highlighted the “risk of anticompetitive behavior responding to the high tariffs.” Alford highlighted a risk where high tariffs lead to the elimination of a foreign market player and increased market concentration, making it easier for fewer competitors to coordinate on price.[12]

The concept of anticompetitive behavior in response to external events is not new. For decades, antitrust enforcers have monitored “crisis cartels” and related anticompetitive responses to economic downturns and other disruptions, including the COVID-19 pandemic, with a particular focus on collusion, price-fixing, and unlawful information sharing.[13]

As a recent example, in March 2025, the Antitrust Division initiated an investigation into potential antitrust conduct related to the rising price of eggs.[14] Prices had previously soared, leading some restaurants and stores to pass on surcharges for eggs and limiting the amount that customers could purchase at any one time. The industry explained rising egg prices were necessary due to the avian influenza outbreak, but after the Antitrust Division initiated its investigation, the price of eggs decreased significantly.[15] In his same April appearance, PDAAG Alford commented on the decreasing egg prices and connected the disruption to possible behavior in response to tariffs. “And I was like, wow, that tells you something. So there is a risk of anticompetitive behavior responding to the high tariffs, and that is dynamic pricing behavior.”[16]

Practical Tips for Reducing Risk

Moving forward, in the face of uncertainty, firms and industries will need to take action to minimize undesirable impacts of tariffs and can do so with more confidence by engaging antitrust counsel and implementing safeguards. Below are practical tips companies should consider:

• Document independent business justifications for pricing decisions. Maintain clear internal records demonstrating that pricing and sourcing decisions are made independently and based on your specific circumstances, not those of competitors.
• Review pricing communications (both internal and external, including investor statements and disclosures) to ensure they do not suggest coordination. Investor and other public statements should not reveal forward-looking pricing intentions or capacity decisions that could be construed as signaling to competitors.
• Document procompetitive reasons for collecting industry information, such as informing independent projections, analyses, and related business strategies. Similarly, review information-sharing policies and limit sharing of competitively sensitive information, especially recent, current, or forward-looking confidential information from competitors, even through third parties.
• Reassess participation in industry groups, trade associations, or benchmarking surveys and other publications. Ensure that groups and associations have up-to-date antitrust compliance policies and appropriate counsel involvement.
• Train employees, especially those in sales, pricing, sourcing, and logistics, to ensure awareness of antitrust risks. Ensure that employees know they cannot discuss pricing, output, sourcing strategies, or market responses to tariffs with competitors, formally or informally.
• Ensure that your company’s antitrust compliance program is up to date and appropriately robust.
• Engage antitrust counsel early. Seek antitrust counsel advice before responding to tariffs, including pricing, proposed changes to business dealings (e.g., exclusivity provisions, refusals to deal, etc.), and setting up collaborations to respond to tariff-related supply disruptions.

[1] Daniel Miller, “These companies expect to raise their prices due to Trump tariffs,” FOX Local (May 26, 2025, 11:27 a.m.); Auzinea Bacon, “These companies will raise prices because of Trump’s tariffs,” CNN (May 24, 2025, 9:00 a.m.).

[2] Zac Anderson, “Donald Trump to double tariffs on foreign steel to 50%,” USA Today (May 30, 2025, 10:11 p.m.).

[3] Timothy Gardner and Marianna Parraga, “Trump tariffs on Venezuela crude buyers are a potent new tool of US pressure,” Reuters (Mar. 25, 2025, 4:21 p.m.).

[4] Rory O’Neill, “EU prepared to counter new Trump tariffs,” Politico (May 31, 2025, 4:46 p.m.).

[5] Christopher Shim and Will Merrow, “Here’s How Countries Are Retaliating Against Trump’s Tariffs,” Council on Foreign Relations (Mar. 21, 2025, 11:48 a.m.).

[6] Kiran Stacey, “UK forging ahead with US trade talks, despite court block on Trump’s tariffs,” The Guardian (May 31, 2025).

[7] Dietrich Knauth and Sarah Marsh, “Trump’s tariffs to remain in effect after appeals court grants stay,” Reuters (May 30, 2025, 5:26 a.m.).

[8] Peter Hoskins and Yang Tian, “Trump tariffs get to stay in place for now. What happens next?” BBC (May 30, 2025).

[9] Khushita Vasant, “US DOJ’s Alford warns of risk of anticompetitive behavior in response to tariffs,” MLex (Apr. 4, 2025).

[10] “DeLauro, Gallego, Whitehouse, Warren, Booker, Colleagues Demand Action to Prevent Corporations from Using Trump’s Reckless Tariffs as an Excuse to Price Gouge Hardworking Americans,” United States Representative Rosa DeLauro (May 15, 2025).

[11] “Justice Department Sues Agri Stats for Operating Extensive Information Exchanges Among Meat Processors,” Department of Justice (Sept. 28, 2023).

[12] Khushita Vasant, “US DOJ’s Alford warns of risk of anticompetitive behavior in response to tariffs,” MLex (Apr. 4, 2025).

[13] “Combating Price Gouging & Hoarding,” Department of Justice (Mar. 23, 2022).

[14] Antonio Pequeño IV, “Largest U.S. Egg Supplier Says It’s Working with DOJ on Egg Price Hike Investigation,” Forbes (Apr. 8, 2025, 8:17 p.m.).

[15] Elaine Mallon, “Jim Banks and Elizabeth Warren push DOJ to investigate egg prices further,” Washington Examiner (May 9, 2025, 11:19 a.m.).

[16] Khushita Vasant, “US DOJ’s Alford warns of risk of anticompetitive behavior in response to tariffs,” MLex (Apr. 4, 2025).