Section 4(1)(a) of the Act prohibits agreements or concerted practices between competitors that substantially prevent or lessen competition, subject to a rule of reason analysis and possible efficiency justifications. By contrast, section 4(1)(b) imposes a per se prohibition on conduct such as price fixing, market division and collusive tendering, for which no efficiency defence is available.

In a modern, data-driven economy such information exchanges do not always occur directly between competitors. Increasingly, they take place indirectly through neutral third-party mechanisms, such as benchmarking service providers, which may facilitate the sharing of sensitive information without direct communication between competitors.

Benchmarking, which is often presented as a legitimate tool for improving efficiency and performance, typically involves the collection, aggregation, and redistribution of firm-level data by an intermediary. While this may create the appearance of lawful separation between competitors, it raises a critical question: Can firms avoid liability under the Act by outsourcing their information exchange to a third party?

Even where competitors share information indirectly through benchmarking or similar mechanisms, such arrangements may amount to indirect collusion where they enable firms to align their conduct and weaken competition. Although South African case law on this issue remains limited, the risks are illustrated by the recent US judgment in United States of America and Others v Agri Stats, Inc (US District Court for the District of Minnesota, Case No 0:23 cv 03009 JRT JFD, filed 7 May 2026) which demonstrates how benchmarking can be used to facilitate co-ordination in ways that undermine competition.

What is benchmarking?

Benchmarking typically involves a situation where an independent company collects and processes individual firm data from market players and then provides this information, including, for example, their individual market share, back to each of them separately.

Information exchanges can also arise through other third parties such as independent consultants, research institutions and other entities not considered to be competitors of firms. These third parties often publish general industry reports and periodicals and establish standards, but may also compile industry statistics or conduct benchmarking exercises based on company data (including commercially sensitive information) of individual members or participants. The aforementioned is not a contravention of the Act.

When benchmarking goes rogue: The Agri Stats case study

In this case, Agri Stats, a consulting business that processed competitively sensitive information through an exclusive subscription service, recruited and enabled major US chicken, pork and turkey processors to exchange such information. These processors provided Agri Stats with detailed data about their current costs and prices.

Agri Stats reviewed and verified the data, then adjusted it to facilitate meaningful comparisons. It subsequently distributed the information back to processors through a range of reports, often within a week of receiving it. These reports amounted to thousands of pages and covered various aspects of processors’ operations, including live production, processing activities, sales and profitability across the broiler chicken, pork and turkey sectors. Although the reports were somewhat anonymised, they still contained highly sensitive competitive information about the industry and, in many cases, about individual processing facilities.

When benchmarking facilitates collusion

The Agri Stats case illustrates how benchmarking arrangements, when improperly structured, can move beyond legitimate performance comparison and instead facilitate collusion among competitors.

Through the provision of frequent and detailed reports, processors were able to compare their prices directly with those of their competitors and adjust their pricing strategies accordingly. In addition, access to industry-wide production data allowed firms to forecast competitors’ output and adjust their own production, accordingly often restricting supply to maintain higher prices.

In addition, Agri Stats actively advised processors on how to use the information in ways that weakened competition. Through its consulting services, it often happened that the same employees of Agri Stats would advise multiple competing processors at the same time. As a result, Agri Stats facilitated conduct that supported higher industry-wide profitability, and this resulted in anti-competitive outcomes.

The conduct was found to violate section 1 of the Sherman Act, which provides that “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal”. The conduct in question was determined to restrict competition and harm consumers, thereby constituting a clear breach of antitrust law.

The settlement

Under the terms of the settlement, Agri Stats was required to implement a range of restrictions on its collection and dissemination of competitively sensitive information. It was prohibited from receiving or maintaining non-public sales data, subject to limited exceptions, and could no longer provide its sales report books or report sales data, even in anonymised form.

Agri Stats was further prohibited from disclosing the identity of any information contributor, although it was permitted to report aggregated information, such as the percentage of production volume covered by a report. It was also barred from publishing rankings of contributors at any level and from reporting individualised data, except where expressly permitted.

In addition, for all Agri Stats reports consisting of data reflecting 50% or more of the US sales for the protein segment that were the subject of the specific run, Agri Stats was required to ensure that all aggregated data and statistical data values consisted of data from at least three meat processors with no meat processor representing more than 70% of the data reflected in the Agri Stats report.

Further safeguards required that all reported data, other than a processor’s own data, be sufficiently historic, with an average age of at least 45 days, and that production-related data reflect decisions made at least 90 days prior.

Finally, Agri Stats was required to make its reports and manuals available to any person in the US on non-discriminatory terms, without requiring participation or the contribution of data as a condition of access.

Implications for South African firms

The Agri Stats case illustrates an important lesson, namely that the exchange of sensitive information through intermediaries such as consultants could potentially reduce uncertainty and enable co-ordination among competitors, which contravenes the Competition Act.

The Commission’s Information Exchange Guidelines (Guidelines) also caution against the sharing of current, future, or insufficiently aggregated data where it allows firms to predict or monitor competitors’ behaviour.

The Agri Stats case and the Guidelines confirm a clear principle: competition authorities will focus on the effects of such information exchanges in the market, and not the mechanism with which it was shared. The use of third parties will not shield firms from liability where such exchanges undermine independent decision making and facilitate co-ordination.