International Compliance Professionals Association (“ICPA”)
Antitrust Compliance Policy and Guidelines
This document contains ICPA’s “Antitrust Policy,” “Antitrust Guidelines” and “Antitrust Reminder” that together represent ICPA’s antitrust compliance program. The document is intended to educate ICPA members about the federal antitrust laws that are applicable to trade association activities, and to serve as a basic guide to assist ICPA and its members in conducting ICPA meetings and activities in conformity with these laws.
It is the policy of ICPA to comply strictly with all laws that relate to the conduct of its activities, including the antitrust laws of the United States. All ICPA members, officers, and staff must familiarize themselves with the ICPA “Antitrust Guidelines,” and shall agree to conform all ICPA sponsored meetings and activities, in strict accordance with the Guidelines. The Guidelines shall be updated and revised as appropriate by the ICPA Board in consultation with counsel. The Guidelines are intended to provide basic guidance on the antitrust laws that may be applicable to ICPA activities. Counsel should be consulted in all cases involving specific situations, interpretations or advice. An ICPA staff member or counsel shall attend all meetings, and counsel shall attend any meeting in which issues with antitrust implications are expected to be discussed.
Overview of the Antitrust Laws
The antitrust laws are intended to foster and protect competition. As such, the laws prohibit particular anticompetitive activities, and more generally those that are deemed to unreasonably restrain trade. Agreements among competitors are inherently suspect under the antitrust laws. Therefore, while the purpose of ICPA is to promote the exchange of ideas and developments in the global online commerce and thereby foster competition among industry participants, group activities of competitors–such as those conducted by a trade association–are inherently suspect under the antitrust laws. For this reason, ICPA has developed these Antitrust Guidelines to provide a general overview of antitrust laws and specific guidelines to assist ICPA in conducting its activities in conformity with antitrust laws.
The basic statutes that are applicable to trade associations are the Sherman Act and the Federal Trade Commission Act. The Sherman Act prohibits “contracts, combinations or conspiracies in restraint of trade or commerce.” Taken together, the contract, combination or conspiracy requirement has been found to exist where there is some form of agreement between two or more parties. Such agreements may be explicit, e.g., taking the form of a contract or other oral or written communication, or implicit, e.g., implied by the conduct of the parties and construed to indicate an agreement was formed.
In most cases, the prohibitions of the Sherman Act extend only to transactions that are found to be unreasonable restrictions on competition. Hence, courts examine the “reasonableness” of the restraint involved in light of all the relevant circumstances. In applying this “Rule of Reason” to alleged anticompetitive business activities, the courts conduct an extensive economic analysis of the alleged restraint on trade, the business context in which it arose, its purpose and probable anticompetitive effects, and the business or economic justification for the restraint. The categories of per se violations are discussed below.
Certain activities, however, are deemed unlawful without a detailed examination of their context or effects on competition and constitute “per se” or automatic violations of the Sherman Act.
Federal Trade Commission Act
Section 5 of the FTC Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices.” The FTC Act’s broad enforcement provision empowers the Commission to determine the meaning of “unfair.” In addition, activities considered illegal under the Sherman Act also are generally unlawful under Section 5 of the FTC Act. Furthermore, Section 4 of the FTC Act empowers the FTC to take action against “incipient” unfair practices; that is, conduct which does not yet amount to–but is likely to lead to–a violation of the other antitrust statutes.
Enforcement and Penalties
The U.S. Department of Justice, states, and private parties harmed by the anticompetitive conduct of others may bring suit for violations of the Sherman Act. Enforcement of the FTC Act is vested exclusively in the FTC. Violations of the Sherman Act may result in both criminal and civil penalties. In addition, private plaintiffs may recover three times the amount of damages suffered, plus the costs of bringing suit, including attorneys’ fees.
In the past, not only organizations but also their officers and directors have been found criminally and civilly liable for antitrust violations. In addition to the strict penalties associated with antitrust violations, the courts and the FTC have ordered the dissolution of associations found to engage in anticompetitive practices. Therefore, it is imperative that all ICPA members, officers and staff take all appropriate measures to minimize the risk of antitrust violations.
General Antitrust Guidelines
This section describes types of activities and practices that courts have found to constitute violations of the Sherman Act. ICPA officers, staff and members must take extreme care to avoid even the appearance of engaging in these types of activities, as well as any others which could be construed as having an anticompetitive intent or purpose. Attached to these Guidelines is an Antitrust Reminder that may serve as a “checklist” for ICPA to circulate to members on a regular basis and prior to meetings, perhaps by furnishing a copy with the meeting agenda.
Per se violations have traditionally included agreements among competitors that have the purpose and effect of “fixing prices,” “allocating territories,” or “boycotting third parties.” Under the antitrust laws, “price fixing” includes much more than an agreement to set prices at a particular level, within a specific range, or in accordance with a particular formula. It potentially includes any agreement that tends to raise, fix, stabilize or otherwise affect price. Thus, even if the parties permit the price to vary somewhat under the agreement, the agreement is illegal if it has the effect of stabilizing the price among those participating in the conspiracy. Similarly, price fixing includes agreements to control other factors that directly or indirectly affect price, such as establishing production levels, setting uniform discounts, credit or warranty terms, or agreeing on matters relating to costs, especially when those costs account for a substantial percentage of the final price.
At no time shall any discussion or agreement among ICPA members take place regarding product prices, price changes, supply and demand for products or raw materials, or any other subjects bearing on product pricing.
Territorial or market allocation involves an agreement among competitors operating at the same level of the market structure–such as manufacturers, distributors, etc.–to divide the market in such a way as to allow each party to the agreement to serve its share of the market without competition from the others. Such prohibited allocations in the past have been made on the basis of geographical boundaries or particular types of customers.
No discussions or agreements shall take place concerning allocation or division of markets or geographical or other restrictions on representatives, distributors or other customers of ICPA members’ products.
Group boycotts or “refusals to deal” are considered per se violations in certain instances. Agreements or collective action to refuse to deal with certain suppliers, customers, or other competitors, or to undertake actions that tend to exclude certain participants from the marketplace or deny them access to a significant competitive benefit available to others in the market are prohibited. Before the per se rule is applied, however, several factors are considered, such as whether the activity was undertaken for an anticompetitive purpose, whether the group possesses market power, and whether it holds exclusive or unique access to a business element necessary for effective competition.
In the trade association context, group boycott issues may arise in relation to membership or exhibition restrictions, or in disciplinary or expulsion action against members. Because these situations must be analyzed closely in accordance with strictly defined legal guidelines, counsel should be notified prior to ICPA’s consideration of any of these actions.
ICPA members shall not engage in any discussion or agreement concerning particular representatives, distributors, other customers, or suppliers involving decisions to deny, limit or terminate business relations between any ICPA member and such firms. Also, counsel shall be notified prior to any discussion by ICPA concerning restricting or denying membership or exhibition space to any nonmember firm that competes in the industry.
In addition to the issues described above, other antitrust problems may arise where trade association activities are undertaken which may have anticompetitive effects on non-members. Particular guidelines must be followed before undertaking any association project, such as an industry survey or other statistical program, or petitioning industry or government organizations on matters that may have a competitive impact on non-members. Accordingly, counsel must be contacted before discussing or planning these programs.
Do Not–in fact or appearance–discuss or exchange information with actual or potential competitors regarding any of the following matters, either on the ICPA website, during ICPA sponsored meetings or gatherings or otherwise discuss or exchange:
- Individual company prices, price changes, price differentials, mark-ups, discounts, warranties, allowances, credit terms, costs, production levels, capacity, sales, etc.
- Plans of individual companies concerning the design, production, distribution or marketing of particular products, including proposed territories or customers.
- Division or limitation of sales to particular territories, customers or classes of customers.
- Refusal to sell to or purchase from, or termination or modification of sales or purchase arrangements with representatives, distributors, or other third parties, or prices or terms of sale or resale by customers.
- Industry pricing policies, price levels, price changes, differentials and/or changes in industry production, capacity or inventories.
- Matters relating to actual or potential individual suppliers or customers that might exclude them from any market or of influencing the business conduct of firms toward such suppliers or customers.
- Limiting or eliminating competition in any way, or efforts to create a monopoly.
- ICPA Membership, denial of membership, or expulsion of members other than in formal meetings with the participation of counsel
Do not discuss or exchange information regarding the above matters during ICPA events or communications through ICPA sponsored message boards or at ICPA sponsored meetings, even in jest.
Before meetings, prepare and have counsel review agendas of particular items to be discussed at meetings and adhere to the agenda unless additional matters for discussion have been approved in advance by ICPA staff or counsel.
Ensure that draft meeting minutes are promptly prepared after each meeting, reviewed by counsel, and then circulated to members present at the meeting to determine that the minutes accurately reflect the proceedings.
Protest any discussions or meeting activities that appear to violate the antitrust laws or the ICPA Antitrust Compliance Policy and Guidelines; disassociate yourself from any such discussions or activities and leave any meeting in which they continue. Be sure that ICPA staff and counsel are made aware of any such activities.
Provide ICPA members and staff with a copy of this checklist and have a copy available for reference at all ICPA sponsored meetings.