THREE ASSOCIATION ACTIVITIES
THAT MAY RAISE ANTITRUST ISSUESBecause associations bring together competitors in various fields, their acitivities have the potential to violate antitrust laws. In general, Antitrust laws prohibit activities that “unreasonably restrain trade.” Some activites are considered “unlawful per se” meaning that if you do it, you are violating the law. Examples include: agreements to set price(s) (price-fixing); agreements to refuse to deal with third parties (boycotts, sometimes including refusing membership in an association to competitors); and agreements to allocate markets or limit production. Activities that are not “per se” illegal under the antitrust laws may be found illegal if they fail a “rule of reason” analysis - that is, on balance, does the activities pro-competitive benefits outweigh its anticompetitive impact?
Associations, by bringing competitors together, are by their nature “combinations” - the first element necessary in many antitrust actions. Some association activities are more likely than others to raise antitrust concerns, including:
Organizations that engage in any activities similar to those described above should consider undergoing an antitrust audit, including the development of antitrust compliance guidelines for the association and its members.
Membership restrictions - which may be considered a type of boycott, a per se antitrust violation, if the exclusion of potential members has an anticompetitive effect;
Statistical reporting activities - if the association conducts surveys or other reporting activities related to competitively sensitive areas such as capacity, prices, rates, credit terms, revenues, future sales or marketing strategies, and customer or supplier lists; and
Standards and certification activities - if these activities exclude or impede the active participation of certain competitors in market activities.
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