20-9 ecoHair Braiders Association ("ecoHair")

U.S. DEPARTMENT OF JUSTICE
Antitrust Division
MAKAN DELRAHIM

Assistant Attorney General
Main Just ice Building
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
(202) 514-2401 / (202) 616-2645 (Fax)

October 27, 2020
By Ele ctronic Mail

Denise Jarrett
ecoHair Braiders Association, LLC
deanie4426@gmail.co m
RE: Business Review Request from the ecoHair Braiders Association
Dear
Ms. Jarrett:
This letter responds to your request, on behalf of the ecoHair Braiders Association
(“ecoHair”), for the issuance of a business review letter under the Department of Justice’s
Business Review P rocedure, 28 C.F.R. §50.6.
1
Specifically, the Department understands that
your request is made under the expedited, temporary review procedure as detailed in the Joint
Antitrust Statement Regarding COVID-19 dated March 2020 (“Joint Statement”).
2
Based on the
information and representations you have provided, the Department has no present intention to
challenge the P roposed Conduct. Pursuant to the Joint Statement, the Department’s statement of
its c ur r e nt e nf or c e me nt inte ntions a s s e t out in this le tte r w ill b e in e f f e c t f or one ye a r f r om the
date of this letter.
We understand that ecoHair is a voluntary membership association that provides trainings
and support to individual hair braiders, hair braiding schools, and salons.
3
You have represented
1
See Letter from Denise Jarrett, ecoHair Braiders Association, to the Hon. M akan Delrah im, A s s’t A tt ’y Gen.,
Antitrust Div., U.S. Dep’t of Justice [hereinafter “Request Letter”]

2
See Dep’t of Justice & Fed. Trade Comm., Joint Antitrust Statement Regarding COVID-19 (Mar. 2020),
https://www.justice.gov/atr/joint-antitrust-statement-regard ing -co vid -19 [h erein after “Joint Statement”].
The Division has concluded that expedited review within seven calendar days is not appropriate here, although the
Div is io n h as s till aimed t o res p on d t o y ou r req uest exp ed it io usly u nder t h e circu mst ances.

3

See also

Minnesota Bd.

of

Cosmetologist

Exam’rs, BCE Bulletin: Hair Braiding at 1 (Ju ly 26,

2016),

h ttp s://mn .gov /bo ards/assets/Hair_ Braid ing _Bu lletin _2016_ tcm21-250454.p d f

(“Hair

braiding is a natural form of

hair

manipulation that

results in tension on hair strands by beading, braiding, cornrowing, extending, lacing, locking,

sewing, twisting, weaving, or wrapping hair into different shapes, patterns, and

textures predominantly by hand and

by only using simple braiding devices on human hair, synthetic hair, or hair extensions.”).

that ecoHair’s approximately 350 members make up fewer than 10% of hair braiders in
Minnesota and fewer than 1% of hair braiders in any other state. You also indicate that hair
braiders, like many small businesses across America, have been severely impacted by the
COVID-19 pandemic and measures to mitigate its spread. Moreover, hair braiding can pose
unique risks for customers and braiders because it often involves several different people
working simultaneously on the same customer for prolonged periods of time.
ecoHair proposes to help hair braiders address these challenges in three ways
(collectively, the “P roposed Conduct”).
4
Fir s t, e c oH a ir w ill pr ovide ha ir br a ide r s w ith guida nc e
about offering their services in compliance with federal, state, and local health guidance.
5
For example, ecoHair will encourage braiders to “report [if] they are sick or experiencing
symptoms while at work to the [CDC’s] COVID-19 hotline” and “implement[] leave policies
that promote hair braiders staying at home when they are sick.”
6
You have represented that these
r e c omme nda tions a r e volunta r y, me a ning tha t e c oH a ir w ill not r e quir e me mbe r s to f ollow the m
or punish those who decline to do so. Instead, individual hair braiders or their salons will de c ide
how and whether to enforce these policies.
7
Second, ecoHair will of f e r “[ o] nline e duc a tiona l
programs” to teach hair braiders about rules affecting how and whether they can r e-open their
salons or shops.
8
Finally, ecoHair intends to hold “virtual interactive question and answer[]”
sessions with hair braiders.
9
Y ou ha ve r e pr e s e nte d tha t the s e s e s s ions w ill not involve the
exchange of any competitively sensitive information, e .g., price, capacity, output, or
competitively sensitive customer information. Instead, these conversations will be f oc us e d on
informing hair braiders about where they can access face masks or other resources and
equipment.
On the basis of the information and representations you provided to the Department, it
appears that the P roposed Conduct does not raise concerns under the federal antitrust law s.
10
In particular, the P roposed Conduct seems unlikely to “limit independent decision making” or
4
Your initial request indicated you have undertaken some aspects of the proposed conduct already. Request
Letter at 11. “Although the Department typically does not review ongoing conduct, given the President’s
declaration of a national emergency and the current exigencies, we have determined that, in these circumstances, it
is appropriate to consider the request.” Letter from the Hon. Makan Delrahim, Ass’t Att’y Gen., Antitrust Div., U.S.
Dep ’t o f Ju s t ice, t o Th omas O. Barn et t , Eli Lilly an d Co mp an y , A bCellera Bio lo g ics , A mg en , A straZeneca,
Gen en tech, an d GSK (Ju ly 23, 2020).

5

Request

Letter at 4.

6

Id. at

4–5.

7

Id. at

3.

8
Id. at

4.

9

Id.

10

In

so concluding, we express no opinion on

the safety measures

recommended

by ecoHair or whether they satisfy

any federal, state, or local guidance.

1

"reduce [hair braiders'] ability or incentive to compete independently."
11
Moreover, while
eco-Hair's guidelines reflect that, as a result
of the pandemic, hair braiders may reduce output in
the short term, e.g., by offering fewer appointments so that hair braiders in the same salon can
remain socially distanced from each other, following the guidelines could also help them remain
open while
it may not be possible or safe to offer normal service. Additionally, while hair
braiders exchanging information among themselves could raise concerns under certain
circumstances, based on your representations this exchange does not involve competitively
sensitive information and
so it seems unlikely to facilitate "explicit or tacit collusion."
12
Finally,
the Proposed Conduct may provide significant procompetitive benefits to consumers by allowing
more hair braiders to re-open sooner and more safely, ultimately increasing output and
competition.
In accordance with usual practice, however, the Department reserves the right to
bring
an enforcement action in the future if the Proposed Conduct proves to be anticompetitive in
purpose or effect.
This letter expresses the
Department's current enforcement inte ntions with respect to the
federal antitrust laws only
and is predicated on the accuracy of the information and
representations you have made to us.
The letter also reflects the outcome ofan expedited,
temporary review procedure
that is necessarily less thorough than ordinary business review
procedures and s hould not be interpreted as applying to any matter other than the Proposed
Conduct
as it re lates strictly to, or arises directly out of, the COVID-19 pandemic.
T
his lette r is made in accordance with the Department's Business Review Procedure, 28
U.S.C. § 50.6, and subject to the limitations and reservations of rights therein. Pursuant to its
te rms, your business review request
and this letter will be made publicly available immediately,
and any supporting data you have submitted will be made publicly available within thirty days of
the date of this letter, unless you request that part of the material be withheld in accordance with
paragraph 10(c)
of the Business Review Procedure.
Makan Delrahim
11
U.S. Dep't of Justice & Fed. Trade Comm' n, Antitrust Guidelines for Collaborations Among Competitors, § 3.1
(2000), h ttps://www.justice.gov/atr/page/file/ I 098461/ download.
12
Id.§ 2.2.
2