AVOIDING ANTITRUST CONCERNS WHEN CONDUCTING SURVEYS
Associations often find it useful to conduct surveys related to their industries and the products and services provided by their members. While this information is useful and may promote competition, great care must be taken to avoid raising antitrust concerns when conducting these types of surveys. If competitively sensitive information, including data regarding capacity, prices, rates, credit terms, revenues, future sales or marketing strategies, or customer or supplier lists is collected, particular care must be taken. Further, the more concentrated an industry and the higher the barriers to entry into the industry the more likely data will have anticompetitive effects.Fortunately, in 1996 the U.S. Department of Justice and the Federal Trade Commission published a “safe harbor” for information exchanges. Provided that the following three conditions are satisfied, the federal antitrust enforcement agencies have vowed not to challenge a survey “absent extraordinary circumstances”:
These rules are designed to ensure that the data exchange does not lead to discussions or coordination of prices or costs.
the survey is managed by a third-party (e.g., a purchaser, government agency, health care consultant, academic institution, or trade association);
the information provided by survey participants is based on data more than 3 months old; and
there are at least five providers reporting data upon which each disseminated statistic is based, no individual provider’s data represents more than 25 percent on a weighted basis of that statistic, and any information disseminated is sufficiently aggregated such that it would not allow recipients to identify the prices charged or compensation paid by any particular provider.”
If your association conducts surveys it is important not only to follow these safe harbor guidelines but also to have a periodic antitrust audit and an association antitrust policy that is known and understood by senior staff, officers and directors.