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Trade Associations and Antitrust Risk
August 2009 — Antitrust restrictions pose a significant area of legal risk for many trade associations. By their nature, trade associations bring together competitors to address topics of common interest or concern. Standard-setting, information-gathering, and joint advocacy before legislative bodies - activities at the core of most associations' mission - provide opportunities for engaging in anticompetitive behavior. Moreover, association meetings have the potential to be misused as a vehicle for collusion. With the Obama Administration having indicated its intent to step-up antitrust enforcement, it is more important than ever for trade associations to be aware of the risks they face and to take the steps necessary to minimize and even eliminate those risks.
Antitrust risk is most effectively mitigated through the adoption of a rigorous antitrust compliance policy and by providing antitrust training to directors, officers and employees. Among the guidelines associations should follow to minimize antitrust risk are:
- Association meetings and information-gathering activities should avoid sensitive competitive topics such as pricing information, costs, profit margins, customers, suppliers, terms of dealing, the scope of geographic markets, and the terms of patent licenses.
- Informal meetings among competitors should be avoided.
- Formal meetings should follow a written agenda and association counsel should be present at meetings where competitively sensitive information could be discussed. A written record should be created that accurately reflects what was discussed at the meeting.
- Information-gathering activities such as industry surveys and reports should minimize the collection of competitively sensitive information and should utilize safeguards, such as the aggregation of any such data.
- Standard-setting activities should not have the effect of restricting competition, such as punishing members that opt out.
- Rules regarding membership in the association should be reasonable, objective, and applied uniformly.
For more information regarding antitrust risk to your organization or association, and how those risks can be effectively mitigated, please contact our offices.
This information is not intended to constitute, and should not be considered, legal advice. This article is provided as general information that may or may not reflect the most current legal developments.
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