Antitrust Risks for Trade Associations and Members

95 Pages·2014·1.29 MB·English

by  Erika Simon

Presenting a live 90-minute webinar with interactive Q&A
Antitrust Risks for Trade Associations and
Members: Ensuring Compliance Amid
Intensive Federal Scrutiny
Avoiding Civil Forfeitures, Treble Damages, and Sanctions Due to Anticompetitive Conduct

W EDNESDAY, JUNE 4, 2014
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Today’s faculty features:
Carl W. Hittinger, Partner, DLA Piper, Philadelphia
Benjamin F. Holt, Partner, Hogan Lovells, Washington, D.C.
Christopher E. Ondeck, Partner, Proskauer Rose, Washington, D.C.
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
FOR LIVE EVENT ONLY
Sound Quality
If you are listening via your computer speakers, please note that the quality
of your sound will vary depending on the speed and quality of your internet
connection.

If the sound quality is not satisfactory, you may listen via the phone: dial
1-866-570-7602 and enter your PIN when prompted. Otherwise, please
send us a chat or e-mail [email protected] immediately so we can
address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality
To maximize your screen, press the F11 key on your keyboard. To exit full screen,
press the F11 key again.
FOR LIVE EVENT ONLY
For CLE purposes, please let us know how many people are listening at your
location by completing each of the following steps:
• In the chat box, type (1) your company name and (2) the number of
attendees at your location
• Click the SEND button beside the box
If you have purchased Strafford CLE processing services, you must confirm your
participation by completing and submitting an Official Record of Attendance (CLE
Form).
You may obtain your CLE form by going to the program page and selecting the
appropriate form in the PROGRAM MATERIALS box at the top right corner.
If you'd like to purchase CLE credit processing, it is available for a fee. For
additional information about CLE credit processing, go to our website or call us at
1-800-926-7926 ext. 35.
FOR LIVE EVENT ONLY
If you have not printed the conference materials for this program, please
complete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-
hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a
PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
Antitrust Compliance Considerations
for Trade Associations

Benjamin F. Holt
Hogan Lovells US LLP
Washington, DC
[phone] Strafford Webinar
[email protected] June 4, 2014
The interaction of trade associations with
antitrust laws
Antitrust laws recognize that trade But cooperation between competitors
associations can benefit competition can invite antitrust challenges
 Provide information on important x Coordination on prices or other
regulatory developments
terms
 Advocacy and other public policy
representation x Allocation of markets
 Promote consumer awareness of
x Collective refusals to deal
industry issues and
developments
x Certain membership restrictions
 Facilitate legitimate
benchmarking activities
x Abuse of standards making
 Self-regulation and certain ethical
process
standards
 Provide and implement
appropriate technical standards
www.hoganlovells.com 6
Why should associations worry about
antitrust laws?
• Potential for association, member, and individual liability
(both civil and criminal)

o Association may be liable for anticompetitive actions by the
association or by members acting with “apparent authority.”
[FTC v.
Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990) (association liable for own
conduct); Am. Soc’y of Mechanical Engineers v. Hydrolevel Corp., 456 U.S. 556 (1982)
(association liable for conduct of members acting with apparent authority).]
o Members may be liable for agreements with other members, but mere
membership in an organization is not enough.
[Allied Tube & Conduit v.
Indian Head Inc., 486 U.S. 492 (1988) (member company liable for role in standard
setting).]
o Association officers and directors who knowingly participate in
violation of antitrust laws may be liable. [Reifert v. S. Cent. Wis. MLS Corp.,
368 F. Supp.2d 912 (W.D. Wis. 2005) (directors of association held liable for ratifying
and approving unlawful tying arrangement).]

www.hoganlovells.com 7
Why should associations worry about
antitrust laws? (cont.)
• Examples of past and current antitrust actions
o Nat’l Soc’y of Prof’l Engineers v. United States, 435 U.S. 679 (1978) (holding that
industry code of conduct restricting certain bidding practices was unlawful).
o United States v. ABA, Civ. No. 95-1211 (D.D.C. June 25, 1996) (prohibiting certain
conduct with regard to ABA accreditation of law schools that excluded competitors
of existing accredited law schools);
o United States v. Nat’l Ass’n of Realtors, Civ. No. 05C-5140 (N.D. Ill., November 18,
2008) (consent decree between the US and the National Association of Realtors
prohibiting association rules that restrict broker’s ability to use certain online
technologies).
o In re Nat’l Ass’n of Music Merchants, Inc., FTC File No. 01-0203 (April 10, 2009)
(consent decree barring the National Association of Music Merchants from
facilitating exchanges of price information and business strategies between music
instrument manufacturers).

www.hoganlovells.com 8
Why should associations worry about
antitrust laws? (cont.)
• Examples of past and current antitrust actions (cont.)
o In re Boulder Valley Individual Practice Ass’n, FTC File No. 051-0252 (Dec. 24,
2008) (consent decree prohibiting certain BVIPA activities, including group refusals
to deal and group negotiations, and restricting the exchange of information
concerning whether or on what terms physicians will do business with payors).
o In re Plasma-Derivative Protein Therapies Antitrust Litigation, MDL No. 2109 (N.D.
Ill. Feb. 9, 2011) (denying motions to dismiss filed by plasma-derivative protein
therapy producers and trade association in connection with alleged agreement to
restrict supply carried out in part through association meetings and activities).
o U.S. v. Okla. State Chiropractic Indep. Physicians Ass’n, No. 13-CV-21-TCK-TLW
(N.D. Okla. Jan. 10, 2013) (consent decree prohibiting chiropractors’ association
and association director from jointly determining prices or negotiating with insurers
on behalf of members).
o Kamakahi v. Am. Soc’y for Reproductive Medicine, 4:11-cv-01781-SBA (N.D. Cal.)
(pending lawsuit alleging that ethical guidelines promulgated by physician
association regarding payments to human egg donors constitute per se unlawful
price fixing conspiracy).

www.hog anlovells.com 9
Primary antitrust statutes involved
• Sherman Act § 1 (and possibly § 2 as well)
• Federal Trade Commission Act § 5 (“unfair methods
of competition”)
• State antitrust laws
• European Union and laws of other nations outside
the US
www.hoganlovells.com 10