Antitrust Compliance Training for Members of
the Connecticut Chiropractic Council
CCC Antitrust Policy
• The CCC or any committee, section, chapter or activity of the CCC
shall not be used for the purpose of bringing about or attempting to
bring about any understanding or agreement, written or oral, formal
or informal, expressed or implied, among two or more members of
other competitors with regard to prices or terms and conditions of
contracts for services or products. Therefore, discussion and
exchanges of information about such topics will not be permitted at
CCC meetings or other activities.
• There will be no discussions discouraging or withholding patronage
or services from, or encouraging exclusive dealing with any supplier
or purchaser or group of suppliers or purchasers of products or
services, any actual or potential competitor or group of actual
potential competitors, or any private or government entity.
CCC Antitrust Policy (cont’d)
• There will be no discussions about allocating or dividing geographic
or service markets or customers.
• There will be no discussion about restricting, limiting, prohibiting, or
sanctioning advertising or solicitation that is not false, misleading,
deceptive, or directly competitive with CCC products or services.
• There will be no discussion about discouraging entry into or
competition in any segment of the marketplace.
• There will be no discussions about whether the practices of any
member, actual or potential competitor, or other person are unethical
or anti-competitive, unless the discussions or complaints follow the
proscribed due process provisions of the CCC’s bylaws.
CCC Antitrust Policy (cont’d)
• Certain activities of the CCC and its members are deemed protected
from antitrust laws under the First Amendment right to petition
government. The antitrust exemption for these activities, referred to
as the Noerr-Pennington Doctrine, protects ethical and proper
actions or discussions by members designed to influence: 1)
legislation at the national, state, or local level; 2) regulatory or policymaking activities (as opposed to commercial activities) of a
governmental body; or 3) decisions of judicial bodies. However, the
exemption does not protect actions designed to cover-up anticompetitive conduct.
CCC Antitrust Policy (cont’d)
• Speakers at committees, educational meetings, or other business
meetings of the CCC shall be informed that they must comply with
the CCC’s antitrust policy in the preparation and the presentation of
their remarks. Meeting will follow a written agenda approved in
advance by the CCC or its legal counsel.
• Meetings will follow a written agenda. Minutes will be prepared after
the meeting to provide a concise summary of important matters
discussed and actions taken or conclusions reached.
• If a member of CCC is found to be in violation of CCC’s policies or
guidelines with respect to the antitrust laws, they shall be subject to
strict disciplinary action, including expulsion, even for the first
offense in appropriate circumstances.
CCC Statement
• The Connecticut Chiropractic Council is a not-for-profit
organization. The Council is not organized for and may not play any
role in the competitive decisions of its members, nor in any way
restrict competition among members or potential members. Rather
it serves as a forum for a free and open discussion of diverse
opinions without in any way attempting to encourage or sanction any
particular business practice.
• The CCC recognizes the importance of the principle of competition
served by the antitrust laws as well as the severity of the potential
penalties that may be imposed on not only the CCC, but its
members as well, in the event that certain conduct is found to violate
the antitrust laws.
CCC Statement (cont’d)
• Accordingly, CCC’s Board of Directors ensures that CCC will not
commit any antitrust violations.
• The CCC’s Board of Directors will ensure that no members will
commit violations of the antitrust laws during a CCC meeting or
discussion.
Federal and State Antitrust Laws
• The purpose of federal and state antitrust laws are to protect
consumers by eliminating practices in the marketplace that
unreasonably restrict competition.
• Aggressive enforcement has subjected violators to large fines and/or
penalties.
• Federal law also criminalize certain antitrust violations resulting in
prison time.
• The vast majority of cases prosecuted criminally under federal
antitrust laws involve allegations of “hard-core” per se unlawful
conduct such as horizontal price fixing, bid-rigging, boycotts, and
market or customer allocations.
Aggressive Federal Enforcement
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At the close of FY 2007, the Department of Justice had 135 pending grand
jury investigations for violations of the Federal antitrust laws, including more
than 50 investigations of suspected international cartel activity.
In FY 2007, the Department of Justice imposed $630 million in fines for
violations of the Federal antitrust laws.
Since 1998, the Department of Justice has imposed over $3.8 billion in fines
for violations of the Federal antitrust laws, of which well over 90% were
obtained in connection with the prosecution of cartel activity.
Maximum penalties are:
– Ten years in jail and $1 million fines for individuals, and
– $100 million or “twice the gross gain or gross loss” fine for corporations,
which has resulted in fines up to $500 million.
In addition, those found liable for violating the antitrust laws may be subject
to paying restitution, treble damages, attorneys’ fees, and/or subject to
injunctive relief.
Prison Sentences in 2007
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87% of individuals charged by the Department of Justice with violating the
Federal antitrust laws were sentenced to prison.
Average prison sentence for incarcerated defendants charged by the
Department of Justice with violating the Federal antitrust laws was 31
months.
Record number of prison days imposed for violating the Federal antitrust
laws – 31,291 jail days.
Corporate Fines of $100 Million or More
F. Hoffmann-La Roche, Ltd. (1999)
Vitamins
$500 Million
Korean Air Lines Co., Ltd. (2007)
Air Transportation
$300 Million
British Airways (2007)
Air Transportation
$300 Million
Samsung Electronics Company, Ltd. &
Samsung Semiconductor, Inc. (2006)
DRAM
$300 Million
BASF AG (1999)
Vitamins
$225 Million
Hynix Semiconductor, Inc. (2005)
DRAM
$185 Million
Infineon Technologies AG (2004)
DRAM
$160 Million
SGL Carbon AG (1999)
Graphite Electrodes
$135 Million
Mitsubishi Corp. (2001)
Graphite Electrodes
$134 Million
UCAR International, Inc. (1998)
Graphite Electrodes
$110 Million
Archer Daniels Midland Co., (1996)
Lysine & Citric Acid
$100 Million
Aggressive State Enforcement
• Violations of the Connecticut Antitrust Act (Conn. Gen. Stat. Section
35-24) subjects an individual to a civil penalty of up to $25,000, and
subjects a business or corporate entity held to have violated the Act
to a civil penalty of up to $250,000.
• In addition to civil penalties, those found liable for violating the Act
may be subject to paying restitution, treble damages, and attorneys’
fees.
• A corporate entity that has held to have violated the Act may also
lose its right to do business in the State of Connecticut and/or lose
the ability to bid on state contracts.
Dealing with Competitors
• Principle focus: Agreement with competitors not to compete in
some way (on price, output, customers, sales territories, etc.)
• Core Do Nots:
– Price fixing
– Output restraints
– Concerted Refusals to Deal (Group Boycott)
– Bid rigging
– Dividing customers or markets
• Another sensitive area is “benchmarking” or “information
exchanges”.
“Agreement”
• The legal definition of "Agreement" is very broad. To prove a
conspiracy, participants must have reached a mutual understanding
to accomplish a common purpose.
• It is not necessary to prove:
– an express, formal or written agreement
– meetings or direct communications
• “Agreement” may be oral or written, formal or informal, explicit or
implicit
• An agreement may be entirely unspoken and proved via
circumstantial evidence.
– “a wink and a nod” are enough
"Agreement" or "Concerted Practice“
• Can be inferred from circumstantial evidence.
• For example:
– Simultaneous price increases.
– Evidence of widespread benchmarking/information sharing of
current information.
• The key question: Are the defendants’ actions consistent with their
individual economic interest or do their actions only make sense if
they are acting in concert?
• Events, meetings, and conference calls are venues at which
competitors could “conspire”
Price Fixing
• Price fixing can take many forms, and any agreement among
competitors that restricts price competition violates the antitrust
laws. Examples of price fixing agreements include those where
competitors agree to:
– Establish or adhere to price discounts;
– Hold prices firm;
– Eliminate or reduce discounts;
– Adopt a standard formula for computing prices;
– Maintain certain price differentials between types, sizes or
quantities of goods or services;
– Adhere to a minimum fee or price schedule;
– Fix credit terms; or
– Not advertise prices.
Price "Signaling"
• Proper
– Simply announcing a price increase
– Unilaterally following a competitor's price increase
• Improper
– Explaining pricing strategies through channels designed to "get
the message" to competitors.
– Public statements of an intent to reduce the level of goods or
services to build support for a price increase or to improve
industry investment economics, may be interpreted as "an
invitation to competitors to join a coordinated price increase".
Customer or Territorial Allocations
• An agreement in which competitors divide markets among
themselves:
– Competitors agree to allocate customers among themselves; or
– Competitors agree to allocate territories or geographic markets
Concerted Refusals to Deal (Group Boycotts)
• Urging, inciting or signaling competitors not to deal with a buyer or a
seller
• Business decisions not to deal with a buyer or a seller that are made
independently do not violate the antitrust laws. On the other hand, a
joint decision not to deal with a buyer or seller will run afoul of the
antitrust laws.
• The “gray area” revolves around when conduct is independent and
when it crosses the line to a coordinated agreement.
Concerted Refusals to Deal (Group Boycotts)
(cont’d)
• Factors that might lead to the inference that conduct amounts to a
boycott include:
– Keeping membership apprised of who has declined to deal with
a buyer or a seller;
– Communications to membership along the lines of “good luck if
you can make money on this”, or “if enough of us refuse to
participate, they’ll have to raise the price”, may be seen as
communications amounting to a call for a boycott.
• While those trade association members that did not agree to the
boycott would not be liable, sorting out who participated in the
agreement would be a factual dispute.
Bid Rigging
• Bid rigging is the way that competitors conspire to raise prices when
purchasers, including state and local government, seek to acquire
goods or services by soliciting competing bids.
• Practices that raise “red flags” (and avoid):
– Last minute changes to bid documents at time of submission
– Discussions with competitors immediately prior to submitting
bids
– Statements that a given contract “belongs” to a particular bidder
• Any of the above may support an inference of an agreement to rig
bids
Types of Bid Rigging Schemes
• Bid suppression–an agreement between competitors to either refrain
from bidding or withdrawing a submitted bid so that a designated
competitor’s bid will be accepted.
• Complementary Bidding–also called “cover” or “courtesy” bidding
occurs when one or more competitors agree to submit bids that are
either too high to be accepted or contain special conditions that will
not be acceptable to the purchaser. This includes those situations
where you did not intend on bidding but agree to do so to “help out”
a competitor.
• Bid rotation–In this scheme all conspirators submit bids, but take
turns on being the low or winning bidder.
• Subcontracting–Competitors agree not to bid or to submit a losing
bid in exchange for subcontracts from the successful low bidder.
Vertical Restraints
• Agreements with suppliers, customers or resellers to:
– Set minimum prices
– Set maximum prices
– Suggest or promote resale prices
– Restrict or allocate sales territories
• In some respects, the current law is unsettled, although generally
now judged under the “rule of reason” (weighing the competitive
harm against the procompetitive justification for the practice).
Vertical Agreements that Might Give Rise to
Liability
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Fixing specific or minimum resale prices.
Cutting off a reseller that prices below a prescribed level.
Cutting off a reseller at the request of a competing reseller.
Unlawful tying agreements (I’ll only sell you my pencils if you also
purchase my eraser).
Vertical Agreements that Usually Do Not Pose
Problems
• Exclusive territories for resellers
• Bundling or tying where (company name) has no market power or
where the products are offered separately.
• Suggesting or promoting reseller-advertised resale prices.
Tying Agreements
• It is unlawful to require the purchase of one product in order to
purchase a second product where:
– A company has market power (usually a very large market share
and the ability to raise prices) in the first (i.e. tying) product.
– The products can be and are sold separately.
– There is no legitimate business justification for requiring that they
be purchased together.
Monopolization
• The intentional acquisition or maintenance of the power to control
prices or exclude competition.
• Elements:
– 1. Market Power
– 2. Abuse of monopoly position
• The existence of monopoly power is not illegal, it’s the illegal use of
that power that runs afoul of the law.
• “Abuse” could include any type of “predatory” or “exclusionary”
conduct.
• Exclusionary conduct may include conduct that has no apparent
rational business purpose other than their adverse effect on
competitors such as (i) a refusal to deal with competitors, customers
or suppliers, (ii) exclusionary boycotts, or (iii) exclusive deals that
foreclose competitors from a substantial portion of the market.
Monopolization (cont’d)
• Predatory conduct is defined as pricing below an appropriate
measure of cost for the purpose of eliminating competitors in the
short run and reducing competition in the long run.
• “Abuse” does not include simply charging a monopoly price or
refusing to sell to a customer for legitimate business reason, even if
that customer is a competitor.
Participation in Trade Associations
• Trade association meetings are always scrutinized in antitrust
investigations and litigation.
• Conventional breeding ground for antitrust conspiracies.
• Trade Associations are valuable in helping to develop and
communicate public policy and improve economic efficiency,
however, everything a trade association does is by “agreement” of
competitors which creates the danger of a “conspiracy”
Activities To Avoid
• Do not discuss current or future prices, costs, or output levels
– What price to sell or buy at
• Avoid discussing individual or industry prices, price changes,
projected prices, price differentials, mark-ups, discounts,
allowances, credit terms, or any other terms or conditions
related to sales or service including credit terms or other data
that bear on prices including profits, margins or cost
– How much to sell or buy
• Avoid discussing individual company or industry figures on
costs, production, capacity, inventories, sales, etc.., except in
connection with an approved, trade association sponsored
data collection project
– Whom to sell to or buy from
Activities To Avoid (cont’d)
• Whether or not to deal with someone
• Business strategy or bidding tactics
– Do not use association meetings to “announce” business
strategies
– Do not discuss plans of individual members regarding the
design, characteristics, production, distribution, marketing or
introduction dates of particular products or services, including
proposed territories or customers
• Do not discuss elimination, restriction or limitation of the quantity or
quality of any product or service to be sold or division or limitation of
sales to particular territories, customers or classes of customers
• Do not discuss changes in industry production, capacity or
inventories
Activities To Avoid (cont’d)
• Do not discuss matters relating to actual or potential individual
suppliers or customers that might have the effect of excluding them
from any market or of influencing the business conduct of firms
toward such suppliers or customers
• Do not discuss who will win a bid or bids on contracts for particular
products or services or procedures for responding to bid invitations
or specific contractual arrangements
• Market-place reactions to public policy
• Do not use association meetings to comment on market trends
• Avoid conducting joint research without prior consultation with
antitrust counsel regarding the particulars of such a proposal
Activities To Avoid (cont’d)
• Avoid discussing individual current or projected cost of procurement,
development or manufacture of any product or service
• Do not use association meetings to negotiate commercial terms
jointly with customers or suppliers
• Do not discuss individual market shares for any products or services
Permissible Activities
• Have a written antitrust policy warning all members against
participating in any prohibited activity
• Policy should be distributed or otherwise made available at all
meetings
• Have antitrust counsel present at all trade association meetings
• Prepare and adhere to advance written meeting agendas
• Avoid informal business meetings outside of the presence of
counsel or other trade association members
• Ensure that the minutes of all meetings fully and accurately describe
all the matters that transpire and that those minutes are distributed
to the members
Permissible Activities (cont’d)
• Protest any discussions or meeting activities that appear to violate
the law. If the discussion continues, you should promptly excuse
yourself from the group, insist that the minutes reflect your departure
and communicate your protest to the appropriate trade association
staff member as well as your company counsel
• Consult with legal counsel on all antitrust questions related to the
trade association’s activities, particularly with regarding to lobbying
activities, data collection and standard setting
Information Collection and Exchange
• This is a complicated area and antitrust counsel should be consulted
prior to any type of data collection and exchange activity
• Structure data collection procedures to eliminate even the
appearance of using the data or the collection process to fix prices
• Generally only “historical” prices, costs, capacity and output levels
• Avoid forecasts of any kind
• Aggregate data sufficiently before publication
• Avoid making an individual firm’s data available to members of the
trade association
• Trade association or third-party contractor should collect and
aggregate the data
Information Collection and Exchange (cont’d)
• Establish firewalls and other measures to ensure that raw data is not
shared among competitors
• Consider providing data collected to customers or to the public
Lobbying
• This is a complicated area and antitrust counsel should be consulted
prior to any type of lobbying activity
• Noerr-Pennington exempts lobbying activities (i.e., attempts to
influence judicial or other adjudicatory, government, legislative, and
regulatory actions; political expression) from antitrust law but it is
very limited protection
• Only protects action “reasonably necessary” for the lobbying, does
not protect direct actions that have an effect in the marketplace
• Focus on broad policy arguments
• Lobby only high-level officials
• Refuse requests for a single point of contact for negotiations
• Remind everyone that companies act independently in the market
Lobbying (cont’d)
• The doctrine is court-made and takes its name from two Supreme
Court cases, Noerr, cited as Eastern R. Conf. v. Noerr Motors, 365
U.S. 172 (1961) (No violation of the Sherman Act can be predicated
upon mere attempts to influence the passage or enforcement of
laws, and the Sherman Act, therefore, does not prohibit two or more
persons from associating together in an attempt to persuade the
legislature or executive to take particular action with respect to a law
that would produce a restraint of monopoly), and Pennington, cited
as United Mine Workers v. Pennington, 381 U.S. 657 (1965).
Lobbying (cont’d)
• The Noerr-Pennington Doctrine does not immunize all contact with
government. The Federal Trade Commission has identified three
types of potentially anticompetitive conduct:
– Requests for ministerial acts;
– Misrepresentations to a government decision maker in a nonpolitical context; and
– Repetitive requests for governmental action filed regardless of
merit solely to use the government process, rather than the
outcome of the process, to injure competitors.
Lobbying (cont’d)
• Noerr protection does not extend to efforts to influence private
organizations, at least by economically sophisticated parties (i.e., if
the restriction flows from private action as opposed to government
action, Noerr protection is unlikely unless court finds that the private
restriction is incidental to a valid effort to influence government
action (i.e., action is chiefly political rather than commercial)
• there must be a petition of the government or other legislative body,
not simply communication between two private parties threatening
litigation or government action
Lobbying (cont’d)
• Noerr also does not protect “sham petitioning”
– engaging in conduct not designed to secure the benefits of
government intervention but rather to impose burdens upon
rivals, regardless of outcome, by forcing them to defend
themselves or incur substantial costs to gain access to the
processes of government
– examples include alleged misuse of the adjudicatory process
such as where a competitor files a baseless request that a
governmental body deny a rival’s petition for regulatory approval,
commences administrative proceedings to impede a rival’s
access to government process, or institutes administrative
proceedings to inflict substantial costs of defense upon a rival
Lobbying (cont’d)
• Conspiracies with Public Officials
– no Noerr protection when government officials conspire with a
private party to employ government action as a means of stifling
competition
• Government Acting in Commercial Capacity
– commercial exception to Noerr immunity where the government
body acts in a purely commercial or proprietary capacity (i.e., as
a commercial participant in a given market)
Standard Setting
• This is a complicated area and antitrust counsel should be consulted
prior to any type of standard setting activity
• Ensure due process in creating and enforcing standards
• It may be necessary to include non-member competitors
• Consider including customers or others involved in the business
• Do not set standards that hinder new products or new entrants
• Do not influence the association to adopt a standard that benefits
your product or service and disfavors competing products or
services
• Always document the benefits and rationale for any standard setting
activity
• Consider a “business review request” to DOJ or FTC
Other Permissible Trade Association Conduct
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Sponsoring trade shows
Publishing trade journals
Collecting and disseminating (aggregated) industry data
Statistical reporting of past costs, production, sales, etc..
Product and market research
Advertising and promotion
Seminars for industry members
Monitoring and reporting on government actions
Educational activities in areas such as marketing, product
development, quality of care, codes of ethics and best industry
practices
Requirements of Stipulated Judgment with
Connecticut Attorney General’s Office
• Cease and desist from entering into, adhering to, participating in,
maintaining, organizing, implementing, enforcing, or otherwise
facilitating any combination, conspiracy, agreement, or
understanding between or among any chiropractors:
– To negotiate on behalf of any chiropractor with any payer
regarding any term, condition, or requirement upon which any
chiropractor deals, or is willing to deal, with any payer, including,
but not limited to, price terms; or
– To deal, refuse to deal, or threaten to refuse to deal with any
payer.
Requirements of Stipulated Judgment with
Connecticut Attorney General’s Office (cont’d)
• Cease and desist from requesting, proposing, urging, advising,
recommending, advocating, or attempting to persuade in any way
any chiropractor to deal or not deal with a payer, or accept or not
accept the terms or conditions, including, but not limited to, price
terms, on which the chiropractor is willing to deal with a payer;
• Cease and desist from exchanging or facilitating in any manner the
exchange or transfer of information among chiropractors concerning
any chiropractor’s willingness to deal with a payer, or the terms or
conditions, including price terms, on which the chiropractor is willing
to deal with a payer;
Requirements of Stipulated Judgment with
Connecticut Attorney General’s Office (cont’d)
• Cease and desist from organizing, sponsoring, facilitating or
participating in any meeting or discussion that the CCC expects or
reasonably should expect will facilitate communications concerning
one or more chiropractors’ intentions or decisions with respect to
entering into, refusing to enter into, threatening to refuse to enter
into, participating in, threatening to withdraw from, or withdrawing
from any existing or proposed participation agreement;
• Cease and desist from continuing a formal or informal meeting that
the CCC expects or reasonably should expect will facilitate
communications concerning one or more chiropractors’ intentions or
decisions with respect to entering into, refusing to enter into,
threatening to refuse to enter into, participating in, threatening to
withdraw from, or withdrawing from any existing or proposed
participation agreement;
Requirements of Stipulated Judgment with
Connecticut Attorney General’s Office (cont’d)
• Cease and desist from continuing a formal or informal meeting of
chiropractors after any person makes any statement concerning one
or more chiropractors’ intentions or decisions, that if agreed to would
violate this Judgment, unless the CCC immediately ejects such
person from the meeting;
• Cease and desist from continuing a formal or informal meeting
where the CCC knows or reasonably should know that two or more
persons are communicating concerning one or more chiropractors’
intentions or decisions with respect to entering into, refusing to enter
into, threatening to refuse to enter into, participating in, threatening
to withdraw from, or withdrawing from any existing or proposed
participation agreement;
Requirements of Stipulated Judgment with
Connecticut Attorney General’s Office (cont’d)
• Cease and desist from attempting to engage in any action prohibited
by this Judgment; and
• Cease and desist from encouraging, suggesting, advising,
pressuring, inducing, or attempting to induce any person to engage
in any action that, if taken by the CCC, would be prohibited by this
Judgment.
Requirements of Stipulated Judgment with
Connecticut Attorney General’s Office (cont’d)
• The CCC agrees that for a period of five (5) years from the date of
this Judgment, the CCC shall:
– Maintain a copy of each document distributed at each meeting of
the CCC’s board of directors, the CCC district meeting, or
seminar or training session sponsored in whole or in part by the
CCC for a period of five (5) years from the date of distribution,
along with records showing the date of the meeting or seminar at
which the document was distributed; and
– Maintain a copy of each document relating to the CCC’s
compliance with the antitrust training and education program
required by this Judgment and which is distributed to any CCC
member or members for a period of five (5) years from the last
date of its distribution, along with records showing the date(s) of
distribution and each person to whom the document was
distributed.
What is my role in antitrust enforcement?
• If you encounter business behavior that appears to violate the
CCC’s Antitrust Policy, you must notify:
– Dr. David N. Steinberg (District Director)
• Information provided will be kept confidential
• You will not be subject to retaliation for alerting CCC officials to
possible illegal, improper conduct or breaches of CCC’s Antitrust
Policy.
• If you suspect that someone within CCC has committed a violation
of the antitrust laws and you say nothing, you could be held
criminally responsible or expelled from CCC.
How do I report a violation?
• If you suspect that a CCC member has violated CCC’s Antitrust
Policy or the requirements of Stipulated Judgment with the
Connecticut Attorney General’s Office and you do not report it to
appropriate CCC officials, you could be subject to disciplinary
action.
• If you suspect an antitrust violation among competitors inquiries can
be made to:
Michael E. Cole, Assistant Attorney General
Chief, Antitrust Department
Office of the Connecticut Attorney General
55 Elm Street
Hartford, CT 06106
860/808-5040
Hypothetical #1
• Members of a trade association are upset with the reimbursement
amount a state agency will pay their company for a particular good
or service.
• The members discuss the perceived unfairness with the level of
reimbursement, voice their displeasure amongst themselves and
some make the statement they will not participate in the program.
• Subsequent to the meeting, many of the members decline to provide
services/good or otherwise participate in the program.
• Have they engaged in an illegal boycott?
Hypothetical #1 – Analysis
• Decisions whether to participate that are made independently do not
violate the antitrust laws. On the other hand, a joint decision not to
participate in order to pressure the agency into raising the price will
run afoul of the antitrust laws.
• The “gray area” revolves around when conduct is independent and
when it crosses the line to a coordinated agreement. Factors that
might lead to the inference that conduct amounts to a boycott
include:
– keeping membership apprised of who has declined to
participate;
– communications to membership along the lines of “good luck if
you can make money on this”, or “if enough of us refuse to
participate, they’ll have to raise the price”, may be seen as
communications amounting to a call for a boycott.
Hypothetical #1 – Analysis (cont’d)
• While those trade association members that did not agree to the
boycott would not be liable, sorting out who participated in the
agreement would be a factual dispute.
Hypothetical #2
• You are at a trade association meeting. The talk turns to the state of
market and where people expect prices to go. Is it okay to
participate in the discussion?
Hypothetical #2 – Analysis
• No. You should not participate in or remain at a meeting of
competitors at which current or future prices are discussed. You
should also clearly voice your objection to such discussions and
report the incident to appropriate official.