Crying Fowl: What the Agri Stats Settlement Means for Competitor Benchmarking Programs

On May 7, 2026, the Antitrust Division of the U.S. Department of Justice (DOJ), along with several states, reached a settlement (Proposed Settlement) with Agri Stats, Inc., to resolve allegations that Agri Stats’ meat industry reports amounted to an impermissible exchange of information among competitors aimed at facilitating price fixing. Agri Stats is a data-sharing and consulting company engaged in the collection of prices, output, and costs from growers and processors in the broiler chickens, turkeys, and pork industries. The Proposed Settlement follows prior settlements between private plaintiffs and Agri Stats in related lawsuits alleging price-fixing of broiler chickens and turkeys.¹

The Proposed Settlement imposes a number of conduct restrictions on what data Agri Stats may collect and report, how that data must be aggregated and aged before it can be shared, who may purchase its reports and on what terms, and how compliance with all of these obligations will be monitored and enforced going forward. Taken together, these commitments represent the DOJ’s most detailed articulation to date of the boundaries between permissible benchmarking and unlawful information sharing among competitors, and carry significant implications for companies across industries who participate in or operate similar data-sharing arrangements.

Information Exchange Safe Harbors Withdrawal and Subsequent Guidance

As we previously wrote about,² in February 2023, DOJ and the Federal Trade Commission (FTC) withdrew two guidance documents that had provided a set of safe harbors to industry, including a safe harbor for competitor information exchange programs (collectively, the “Safe Harbor Guidelines”).³ According to then-Principal Deputy Assistant Attorney General Doha Mekki, who had previewed the withdrawal during a speech, the Safe Harbor Guidelines were “outdated” and “no longer reflected market realities.”⁴

The withdrawn Safe Harbor Guidelines had offered industry a set of conditions that if followed would tend to reduce antitrust risk when sharing competitively sensitive information: (1) the survey must be managed by a third party; (2) the information provided is relatively old; (3) the information is aggregated to protect the identity of the underlying sources; and (4) a sufficient number of sources are aggregated to prevent competitors from linking particular data to an individual source. Although the withdrawn guidance was addressed specifically to healthcare industry participants, the guidance was often applied by enforcers and courts to information exchanges more broadly and provided companies in any sector a set of readily-identifiable and clear conditions to follow when exchanging information.

Over the proceeding years since the withdrawal of the Safe Harbor Guidelines, the DOJ filed a series of statements of interest in antitrust cases across multiple industries, each giving insight into the legal framework that ultimately underpins the Proposed Settlement’s specific prohibitions and requirements. For example, DOJ filed a statement of interest in a private litigation related to information sharing and benchmarking among pork producers and Agri Stats, arguing that aggregating data in and of itself does not provide a safe harbor from liability.⁵ DOJ also filed a statement of interest in a private litigation related to information sharing and benchmarking among frozen potato product producers, arguing that the central question courts should answer is whether the exchange would tend to suppress competition, even if data is aggregated, anonymized, or backward-looking.⁶

The Agri Stats Proposed Settlement

The DOJ, along with the states of California, Minnesota, North Carolina, Tennessee, Texas, and Utah, sued Agri Stats in 2023, alleging that Agri Stats facilitated the exchange of competitively sensitive information, such as price, output, and costs, among meat processing companies. The exchange of information itself is the alleged violation of the Sherman Act, rather than being used as circumstantial evidence of a price-fixing conspiracy. The Proposed Settlement, which is the clearest articulation of what enforcers will consider permissible industry benchmarking among competitors, sets forth a series of commitments and requirements by which Agri Stats must abide to continue reporting information regarding meat processing. Specifically, the Proposed Settlement requires Agri Stats to:⁷

• Stop providing any sales reports or non-public pricing information available only to producers. According to DOJ, meat processors had systematically used these data to identify opportunities to increase prices. The Proposed Settlement, however, expressly carves out and allows continued price reports by Express Markets Inc., a subsidiary of Agri Stats. DOJ stated in its press release that Express Markets’ reports did not raise the same concerns because that pricing information was less detailed and available to all interested parties, not just meat processors.
• Stop reporting production, cost, and labor data at either the company or facility level. According to DOJ, access to competitors’ data at this granular level had allowed meat processors to adjust pricing and output.
• Make information that Agri Stats distributes available to all interested domestic purchasers on reasonable and non-discriminatory terms. According to DOJ, this will eliminate information asymmetry and increase market transparency.
• Adhere to restrictions on the timeliness of the information that Agri Stats shares. According to DOJ, the availability of near-current data allowed competing meat processors to better understand market dynamics, facilitating collusion in almost real time. The Proposed Settlement generally requires that reported information be based on data that is at least 45 days old on average, and at least 90 days old for certain data related to production decisions.
• Comply with certain metrics to ensure that reported data is not dominated by one or a few participants. The Proposed Settlement generally requires that no single contributor account for more than 70% of the data reflected in a report, and that each reported statistic contain data from at least three contributors.

The Proposed Settlement also requires the appointment of a Monitor to oversee Agri Stats’ compliance with the settlement, requires Agri Stats to establish an antitrust compliance program, and gives DOJ and the plaintiff states the right to inspect Agri Stats’ records to ensure compliance with the settlement.

Looking Ahead

Companies involved in benchmarking and other information exchange programs, both those that contribute data and those that receive reports, will benefit from carefully considering how data is collected and reported within their relevant market to avoid being involved in conduct that may be considered to harm competition. Notably, the prohibitions and requirements outlined in the Proposed Settlement are stricter than the withdrawn Safe Harbor Guidelines in some ways, but more permissive in others. For example, the Proposed Settlement allows certain reported information to be based on data that is only 45 days old and from only three contributors, as opposed to the 90-day and minimum of five contributors requirements in the Safe Harbor Guidelines.

Companies will need to take into consideration conditions and dynamics of the specific market when assessing the risk posed by participating in information exchange programs. But the Proposed Settlement offers three general takeaways: (1) aggregated and anonymized data does not in itself create a presumption of legality — instead, reported data must be formatted in a way that does not allow recipients to infer the identity of contributors; (2) limiting reports to purely historical data is still advisable, but what qualifies as historical may vary based on specific market conditions; and (3) sellers and buyers must both be given unconditioned access to reports to avoid market asymmetry.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.