Antitrust & Trade Associations: How Trade Regulation Laws Apply to Trade and Professional Associations

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American Bar Association, Jan 1, 1996 - Antitrust law - 253 pages
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Contents

FEDERAL ANTITRUST LAWS AND THEIR ENFORCEMENT
7
B Dual Enforcement of the Federal Antitrust Laws
8
C Federal Trade Commission Enforcement Procedures
9
2 FTC Investigations
10
3 FTC Consent Settlements
11
4 FTC Litigation
12
5 FTC Rulemaking
13
D Department of Justice Enforcement Procedures
14
c Trademarks
148
e Trade Secrets
150
1 Licensing
151
2 Bad Faith Enforcement
152
PROPER USE OF ANTITRUST COUNSEL
153
B The Selection and Appropriate Use of Antitrust Counsel
154
1 The Decision to Bring Counsel InHouse
155
2 The Selection and Use of Outside Antitrust Counsel
156

2 DOJ Enforcement Actions
15
3 DOJ Industry Guidance
16
E Recent FTC and DOJ Policies Applicable to Trade Associations
17
STATE ANTITRUST LAW AND ANTITRUST ENFORCEMENT BY THE STATE ATTORNEYS GENERAL
21
B An Overview of State Antitrust Laws
22
2 Exemptions and Defenses
27
3 Public Enforcement Provisions
30
4 Statutory Remedies
31
C Antitrust Enforcement by State Attorneys General
33
2 Enforcement in Federal Court
34
3 The Multistate Antitrust Task Force
35
4 The Attorneys Generals Enforcement Priorities
36
5 Cooperation with the Federal Enforcement Agencies
37
6 State Enforcement Activity Directed at Trade Associations
38
PRIVATE TREBLE DAMAGE ACTIONS
41
B Defenses
44
2 In Pari Delicto
47
3 Unclean Hands
48
D Summary Judgment
50
E Jury Trials
51
H Multidistrict Litigation
52
MEMBERSHIP
55
B The Applicable Standards Under the Antitrust Laws
56
2 Quick Look and Section 5 of the Federal Trade Commission Act
58
C Membership Criteria
60
D Expulsion
63
E Availability of Benefits to Nonmembers
65
GOVERNANCE DUES AND ASSESSMENTS
67
C Procedural Safeguards in Association Structure and Management
68
1 Bylaws and Regulations and Meetings
69
2 Voting Procedures
70
D Dues and Assessments
71
E General Procedures for Association Communications
73
GOVERNMENT RELATIONS OF TRADE AND PROFESSIONAL ASSOCIATIONS
75
the Fountainhead
77
2 State Antitrust Law Caveat
80
C NoerrPennington Defense
81
1 Market Participant Exception
82
2 Sham Exception
83
3 Possible Privilege Waiver
84
D NoerrPennington Defense to StateLaw Based Claims
85
What Can be Done in Dealing with Government?
86
ANTITRUST AND PRODUCT STANDARDIZATION AND CERTIFICATION ACTIVITIES
89
B The Rule of Reason as the General Method of Analysis
91
C The NoerrPennington Doctrine in the Context of Standards Setting
96
D The Importance of Procedural Safeguards
101
E Conclusion
103
STATISTICS RESEARCH AND DEVELOPMENT AND MARKETING
105
B Research Activities
117
1 Analysis of the Research Joint Ventures Guide
119
2 Qualifying for Protection Under the NCRPA
125
3 Summary
127
C Marketing
128
2 Advertising Practices
129
3 Summary
134
INTELLECTUAL PROPERTY ISSUES
135
a Acquisition of Patents
136
b Licensing Restrictions
137
1 1988 Guidelines
138
2 1995 Guidelines
139
3 Concern of Trade Association Counsel
140
4 RuleofReason Analysis
141
5 Patent CrossLicensing and Pooling Arrangements
145
6 Enforcement of Patent Rights
146
a Law Firm or Lawyer
157
1 Antitrust Audit
158
3 Investigations and Litigation
159
d Conflict of Interest
160
C Controlling CostsMaximizing Value
161
1 Competitive Bids
162
b Written Guidelines for Outside Counsel
163
2 Cost Estimates
164
6 Travel Expenses
165
b MeetingsAgendas Attendance Minutes
166
d Standard Setting SelfRegulatory and Joint Research Activities
167
ANTITRUST AUDITS OF TRADE AND PROFESSIONAL ASSOCIATIONS
169
C The Case for and Against Audits
170
D When Is an Audit Necessary?
172
E Who Should Conduct the Audit?
173
F Reviewing the Structure of the Industry and the Associations Antitrust History
175
H Announcing the Audit
176
I Document Review
177
J Interviews
179
K Analysis and Recommendations
181
L Should Counsel Prepare a Written Report?
182
M AttorneyClient Privilege and Related Issues
183
2 Attorney Work Product
185
N What if the Audit Discloses an Antitrust Violation?
186
COUNSELING A CLIENT TARGETED BY A GOVERNMENT ANTITRUST INVESTIGATION
189
B Structuring the Representation
190
1 The Conduct Under Investigation
191
2 The Associations Business Structure
193
3 Defining the Clients Interest
194
4 Coordination Among Counsel
195
5 Cost Factors and Internal Association Politics
197
C Agency Practice and Procedure
198
2 Federal Trade Commission
200
3 Similarities and Differences Between the Agencies
201
4 The Clearance Process
203
5 Investigative Tools
205
b Federal Trade Commission
206
D Managing the Defensive Effort
207
1 Responding to Agency Discovery Requests
209
2 Developing the Affirmative Case
213
3 Agency Presentations
216
5 Focus
219
E Concluding the Matter
221
2 Formal Settlement Procedures
222
4 Federal Trade Commission Procedures
224
F Conclusion
226
PRACTICAL CONSEQUENCES OF AN ANTITRUST SUIT TO A TRADE ASSOCIATION
229
Generally Source Not Subject
231
D Conflicts
233
2 Uninvited Member Confidences
234
3 Board Member Conflicts
236
F Time
237
2 Determining Who Has a Right to the Data
238
a Civil Investigative Demands Issued by the Department of Justice
239
b The Subpoena Power of the Federal Trade Commission
240
c Subpoenas Issued by the Courts in Civil Litigation
242
G Preventing Disclosures
243
H Loss of Purpose
245
2 After Receipt of Process
246
3 Settlement
247
J Avoiding Suits and Investigations
248
CONCLUSION
251
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