Antitrust and Associations Handbook

Front Cover
American Bar Association, 2009 - Law - 266 pages
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Significant segments of American business and professions are represented by trade and professional associations. Associations are setting product standards, certifying the expertise of professionals, and actively opposing or promoting new legislative and regulatory initiatives. But association activities raise potential antitrust risks and their exposure to antitrust challenge has increased proportionately. This Handbook helps association counsel and executives help to understand the antitrust issues associated with association activities and minimize their risk.
 

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Contents

OVERVIEW OF ANTITRUST STATUTES AND GOVERNMENT ENFORCEMENT REGIMES THAT AFFECT ASSOCIATIONS
7
a The Sherman Act
8
Monopolization
9
b Clayton Act
10
c Federal Trade Commission Act
11
d The National Cooperative Research and Production Act
12
e Foreign Trade Antitrust Improvements Act
13
b The 1996 Health Care Statements
14
CODES OF ETHICS AND ADVERTISING RESTRICTIONS
123
B Restrictions on Advertising
126
1 Restrictions on Deceptive or Untruthful Advertising
127
C Restrictions on Business Relationships
134
D Restrictions on Pricing Competitive Bidding or Services Offered
137
STANDARDSDEVELOPMENT ORGANIZATIONS
141
A Rule of Reason
143
2 Information Sharing and Spillover Concerns
144

3 Dual Enforcement by the Federal Antitrust Agencies
15
1 FTC Organization and Powers
16
2 Investigations
17
4 Litigation
18
6 Industry Guidance
19
3 Enforcement Actions
21
B State Antitrust Laws and Enforcement
22
ANALYSIS OF TRADE AND PROFESSIONAL ASSOCIATION HORIZONTAL RESTRAINTS UNDER SECTION 1 OF THE SHERMAN ACT
25
B Proof That the Restraint Affects Interstate Commerce
27
Modes of Analysis for Restraints Among Competitors
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1 Per Se Unlawful Restraints
30
a Price fixing
31
b Market Division and Customer Allocation
34
2 Analysis of Horizontal Restraints Under the Rule of Reason
40
3 The 2000 Competitor Collaborations Guidelines
47
LIABILITY AND PENALTIES FOR ANTITRUST VIOLATIONS
51
1 Association Liability
52
2 Association Member Liability
53
3 Individual Liability
54
a Department of Justice
55
2 Civil Enforcement
58
b Federal Trade Commission
59
2 State Antitrust Enforcement
60
MEMBERSHIP CRITERIA AND AVAILABILITY OF ASSOCIATION BENEFITS TO NONMEMBERS
63
B Restraints on Nonmember Access to Association Services
69
C Restraints on Access to Trade Shows
73
INFORMATION COLLECTION AND DISSEMINATION
77
1 Exchanges of Price Cost and Output Information
79
2 Nonprice Information
81
B Market Structure
82
C The Purpose of the Exchange
83
D The Age and Form of the Data Exchanged
85
E The Public Availability of the Information
87
F Direct Exchange Versus Third Party Dissemination
88
G Information for Benchmarking Programs
89
ASSOCIATIONS AND IMMUNITY FOR GOVERNMENTRELATED ACTIVITIES
93
1 A Basic Framework of Noerr Immunity
94
1 Rulemaking
95
2 Enforcement
96
3 Ministerial Filings
97
2 Application of the Noerr Doctrine to Petitioning Foreign Governments
99
3 Application of the Noerr Doctrine to Efforts to Influence Private Organizations
100
4 Noerr Immunity and Economically Motivated Boycotts
102
5 Exceptions to Noerr Immunity
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a Sham Exception
104
2 Pattern Litigation
105
3 Sham Defense
106
4 Other Sham Petitioning
107
b Fraud Exception
108
c Other Proffered Exceptions
110
1 Basic Framework of the State Action Immunity Doctrine
111
2 Criteria for State Action Immunity
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a Clear Articulation Test
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b Active Supervision Test
116
3 Market Participation Exception
118
4 FTC Efforts to Confine State Action Immunity
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b FTC Enforcement Proceedings
121
4 The Importance of Procedural Safeguards
146
5 Antitrust Guidelines for Standard Setting
147
B The AntitrustIntellectual Property Interface
148
C Deception and Other Unfair Conduct in Standard Setting
150
1 Broadcom v Qualcomm
151
3 Qualcomm v Broadcom
152
D Federal Enforcement Agencies Analysis of HoldUp Issues
154
1 FTC Challenges to Deception or Other Unfair Conduct in Standard Setting
155
b Unocal
156
c NData
158
2 Department of Justice Business Review Letters Concerning IP and Standard Setting
159
a VITA
160
b IEEE
161
OTHER TYPES OF COMPETITOR COLLABORATIONS
165
1 Agency Analysis and Guidelines
168
2 Access Restrictions
170
3 RobinsonPatman Act Issues
171
4 Trade Associations and B2Bs
173
B Joint Marketing
174
C Joint Research and Development
180
1 Enforcement Agencies Approach to Joint Research and Development
182
2 The National Cooperative Research and Production Act
184
D Recommendations
187
HANDLING INVESTIGATIONS AND LITIGATION
189
2 Waiver of Privilege
193
3 Work Product Doctrine
195
4 Joint Defense Privilege in the Association Context
196
B Responding to Government Investigations
199
1 Association as Target of Investigation
201
c Settlement
202
2 Association as a Third Party Information Source
203
3 Instigating a Government Investigation
205
C Civil Litigation
206
1 Association as Defendant
207
a Preservation of Relevant Documents
208
c Outside Counsels Role in Structuring and Monitoring Discussions Among Member Company Staff on Potentially Sensitive Topics
209
2 Association as Plaintiff
210
3 Association as Third Party
211
D Summary of Practical Steps
212
ANTITRUST COMPLIANCE FOR ASSOCIATIONS
213
B Antitrust Compliance Standards
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1 General Outline of Antitrust Compliance Policy Statements and Guides
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2 Guidelines for Association Meetings
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a Social Functions at Association Meetings
223
b Electronic Chat Rooms Discussion Forums and Listservs
224
3 Emphasizing Effective Writing
225
C Association Board and Managements Responsibility for Antitrust Compliance
226
D Education and Training
227
E Active Oversight to Achieve Compliance and Detect Noncompliance
228
G Appropriate Disciplinary or Remedial Action
231
H Document Retention and Control
232
SAMPLE ASSOCIATION DOCUMENT RETENTION GUIDELINES
235
SAMPLE ASSOCIATION ANTITRUST COMPLIANCE POLICY
237
ASSOCIATION ANTITRUST REMINDERS AND MEETING GUIDELINES
247
TABLE OF CASES
249
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