1. IT IS ISSA’S FIRMLY ESTABLISHED POLICY TO COMPLY FULLY WITH ALL ANTITRUST LAWS, STATE AND FEDERAL. THIS MEANS NOT ONLY SIMPLY FOLLOWING THE WRITTEN LAW, IT MEANS CONDUCTING OUR ASSOCIATION IN CONFORMITY WITH THE HIGHEST STANDARDS OF ETHICS AND MORALITY, AND AVOIDING CONDUCT THAT MIGHT GIVE EVEN THE APPEARANCE OF WRONGDOING.
   1. The purpose of the antitrust laws is to preserve our free enterprise system by ensuring to the greatest extent possible that American business operates in an economy which is free from collusive agreements by competitors and from other artificial restraints on normal, healthy competition.
   2. The purpose of this statement is to provide a basic orientation on this subject which will help members in two ways:
      1. To recognize situations and potential problem areas that might have antitrust implications or in which expert assistance is required so that you can promptly seek the guidance of counsel in such situations.
      2. To ensure that ISSA members fully comply with the antitrust laws and avoid actions or conduct that might give even the appearance of questionable activity.
2. THE SOURCES OF ANTITRUST LEGISLATION INCLUDE FEDERAL LAW, THE SHERMAN ACT (1890), THE CLAYTON ACT (1914), THE FEDERAL TRADE COMMISSION ACT (1916), AND THE ROBINSON PATMAN ACT (1936), STATE LAWS, AND FOREIGN LAWS.
   1. These laws are enforced by federal authorities such as the Justice Department, the Federal Trade Commission, regulatory authorities, and other agencies. In addition, the state attorney general enforces state law. This officer, in addition to bringing criminal charges, can also sue for damages on the behalf of the state itself and, in some instances, the people of the state who have been injured by the antitrust violations. Private parties may also use civil suits to enforce most provisions of the antitrust laws. Sanctions include criminal penalties, imprisonment, injunctions, and/or damages of up to three times the amount of actual damages, as well as lawyer’s fees.
   2. Section 1 of The Sherman Act prohibits contracts, combinations, and conspiracies in restraint of trade. Simply defined, a conspiracy is an unlawful agreement. The “agreement” is very broadly defined; it can be oral or written, formal or informal, expressed or implied. According to the circumstances, it may include:
      1. A formal agreement.
      2. An informal agreement.
      3. An “understanding,” a “knowing wink,” or any course of conduct from which the existence of an agreement could be inferred.
   3. Some acts are considered to be so definitely anti-competitive that their unreasonableness is conclusively presumed. The act itself, once proved, constitutes the violation or offense. This sort of act is called an offense “per se.” Examples include:
      1. Agreements to establish prices (price fixing).
      2. Agreements to refuse to deal with third parties (boycotts).
      3. Agreements to allocate markets or to limit production.
      4. Many tie-in sales, in which the customer is required to buy an unwanted item in order to buy the product he desires, also are considered unlawful per se.
   4. Competing firms may not agree to fix or stabilize prices, or otherwise eliminate or stifle price competition between the firms. It makes no difference that the understanding or agreement seemed to the parties involved to have a reasonable purpose such as to stabilize chaotic prices, to help dealers in a local price war, or to prevent overproduction. Agreements or understandings that should be avoided include:
      1. Direct agreements to fix prices.
      2. Agreements concerning the terms and conditions on which goods or services would be provided.
      3. Exchange of information on costs and prices between competitors.
      4. Informal conversations between competitors that include a discussion of prices, pricing practices, or factors affecting them.
      5. Any type of competitor contract or parallel conduct from which an “agreement” might be inferred, since even the appearance of collusion can be the basis for a large jury verdict against the company.
3. THE LEGALITY OF ASSOCIATION ACTIVITIES UNDER THE ANTITRUST LAWS IS JUDGED BY THE SAME STANDARDS AS ARE APPLIED TO OTHER ENTITIES. HOWEVER, ASSOCIATIONS BY THEIR VERY NATURE PRESENT SPECIAL ANTITRUST PROBLEMS. ONE PROBLEM IS THAT MERELY BRINGING COMPETITORS TOGETHER IN AN ASSOCIATION CREATES THE MEANS BY WHICH COLLUSIVE ACTION CAN BE TAKEN IN VIOLATION OF ANTITRUST LAWS. THEREFORE, THERE ARE SEVERAL AREAS OF PARTICULAR ANTITRUST CONCERN TO ISSA. BY FOLLOWING A FEW SIMPLE GUIDELINES, YOU CAN PARTICIPATE FULLY IN ASSOCIATION PROGRAMS AND ACTIVITIES WITH LITTLE POSSIBILITY OF ANTITRUST PROBLEMS.
   1. Trade association activities such as regular meetings of the trade association are perfectly lawful. But even in such a setting, great care must be taken by all members to avoid discussing prices, costs, and similarly sensitive subjects. This includes avoiding even listening to such discussions by competitors. Remember, it is not enough actually to refrain from violating the antitrust laws; you must also refrain from any conduct from which a violation could even be suspected.
      1. If a member brings up for discussion at a meeting a subject of doubtful legality, he should be told immediately the subject is not a proper one for discussion. The association staff representative or any member present who is aware of the legal implications of the discussion should attempt to halt the discussion. Should the discussion continue, despite protests, it may be wise to leave the meeting.
      2. Minutes of all meetings should be kept (usually by association staff). They must accurately report what actions were taken.
   2. Secret or “rump” meetings held at the time of the scheduled meetings should be strictly avoided. Such meetings seldom have any purpose other than to discuss illegal activities and, accordingly, they seriously jeopardize legitimate association activities and create a very substantial risk that those activities will be investigated. An association staff member should usually be present at all meetings.
   3. Companies or individuals look at association membership as a means to achieve an economic advantage. Anticipated economic advantages of membership take many forms, including access to product liability, legislative and regulatory information, educational programs, enhanced standing with potential customers, and better access to suppliers. Given these economic benefits, those denied membership find themselves without access to association services and information and may be put at a competitive disadvantage. It is the denial of some economic benefit that raises antitrust problems. Some considerations members should be apprised of are:
      1. A trade association must allow membership to all those in the trade, if excluding them would significantly limit their opportunities to compete effectively. Associations should avoid criteria for membership which either are unrelated to legitimate purposes of the association or which in any way tend to reduce the level of competition. An association may expel members only for proper substantive grounds (such as nonpayment of dues or change in business).
      2. The issue of a tie-in can arise in the context of requiring association membership in a local affiliated association as a prerequisite to membership in a national association or vice versa. In effect, membership in one association is “tied” to membership in the other.
      3. An association may not force members of an industry to join an association by denying access to association activities to nonmembers. Denial of access to important association services and activities can constitute restraint of trade when access is essential for effective competition.
4. AS AN INTERNATIONAL TRADE ASSOCIATION, ISSA IS ALSO CONCERNED WITH THE APPLICATION OF THE ANTITRUST LAWS IN FOREIGN COMMERCE. EXTRATERRITORIAL APPLICATION OF ANTITRUST LAWS PRESENTS QUESTIONS AS TO THE REACH OF THE LAWS AND AS TO NATIONAL JURISDICTION TO PRESCRIBE OR ENFORCE.
   1. United States antitrust laws bearing upon foreign commerce include:
      1. The principal statutes covering interstate commerce dealt with above.
      2. Legislation directed specifically to imports and exports (such as The Wilson Tariff Act of 1970 and The Tariff Act of 1930).
   2. The United States courts have grappled with the question of when these antitrust laws should be applied and when doing so would be stepping outside the bounds of United States jurisdiction. Some relevant considerations include:
      1. In 1909 the United States Supreme Court found that a defendant was outside the jurisdiction of the United States in the case of American Banana Co. v. United Fruit Co. In the decades since that case, there has been no other instance of a judgment for a defendant on this ground.
      2. A foreign subsidiary of a United States corporation is subject to United States antitrust laws. Since it is a national of its country of organization it is also subject to the laws of that country. Thus, subsidiaries are often subject to conflicting laws and must violate the antitrust laws of one country in order to comply with those of another.
   3. When the laws of two or more nations apply to a situation, any state may exercise its jurisdiction notwithstanding the jurisdiction of other states. Since there are no definitive rules of priority, the principles of comity apply. These principles require the country to consider, in good faith, moderating the exercise of its enforcement jurisdiction, in light of the relevant factors. Decisions of the United States courts relating to comity have followed these trends:
      1. United States courts do not, in general, order a person to perform acts in violation of foreign laws.
      2. United States courts generally will order production of documents from abroad or issue injunctions governing conduct abroad.
   4. The United States has assumed an active role in cooperation with other nations on antitrust matters. Some examples of this cooperation include:
      1. The United States has a special informal antitrust cooperation arrangement with Canada. The arrangement calls for each country, in enforcing its own antitrust laws, to consult the other when it appears that the other country’s interest will be affected by an antitrust investigation or case.
      2. The United States is a party to a number of treaties that contain a restrictive business practice clause such as the treaty with Italy of 1948.
      3. The Contracting Parties of the General Agreements on Tariffs and Trade (GATT) passed a resolution in 1960 recommending bilateral or multinational consultations on restrictive business practices. This is a complaint procedure by which the parties exchange information with each other and with the GATT Secretariat.

CONCLUSION
Trade associations, by their very nature as groups of competitors coming together for economic purposes, must be careful in their encounter with the antitrust laws. If you have any doubt about the legality of an association program or subject of discussion, check with association counsel. You also may wish to consult with your company’s counsel.