Author: Steven Cernak
So you have been invited to your first trade association meeting. Sounds like fun, right? You get a chance to mix and mingle with others in your industry, maybe swap notes with your counterparts at competitors who face the same pressures you do. What could go wrong?
A lot, from an antitrust perspective. While trade associations can provide tremendous benefits to members, by definition, they are meetings among competitors. Communication with competitors can lead to “agreements,” whether explicit handshakes or implicit winks and nods. And some of those agreements, like most related to competitive pricing, are automatically illegal and subject to severe penalties for both you and the company. Here, antitrust law follows Adam Smith’s admonition that
People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.
So even if you remember your company’s training from when you joined years ago and know enough to spell “antitrust” without a hyphen, you still need to remember these tips.
Learn from others in your company
You might not be the first in your company to attend an association meeting. Contact your lawyer or boss to see if your company has rules or other guidance for attending them. Follow that guidance. Some companies even require such reporting before attending. Others in your company might know this particular association and have some suggestions on how to make your attendance both safe and productive for you and your company.
If you need to vet the association, start by asking to see its antitrust policy. All associations of competitors should have one and should be willing and able to share it with you quickly. Most post it online. The policy should acknowledge the necessity to follow all applicable antitrust laws and briefly describe how the association does just that. Frankly, the details are not as important as the fact that the association has one and can quickly provide it. An association executive who responds to your request with “Anti what?” should set off alarm bells.
In this age of texts, instant messaging, and disappearing chats, an agenda can sound old-fashioned. A simple listing of the topics to be covered, however, provides later reviewers some evidence of what was said, and not said. It might help jog your own memory months or years, and many meetings, later. Somewhere near the top of that agenda should be an antitrust warning, a quick reminder to all participants on the limits of the conversation. During the meeting, be sure to stick to that agenda.
Antitrust Attorney present?
Having an antitrust practitioner present during the meeting increases the chance for a safe and productive meeting. She can authoritatively deliver the antitrust warning, stop the conversation from straying into dangerous territory, and, when appropriate, keep the conversation going if someone raises unfounded antitrust concerns. Depending on the size of the association and the number of meetings, it might not be possible to have an attorney at every meeting. If the association or a participating company cannot supply a lawyer for every meeting, some prioritization might be necessary. Certainly, an attorney should attend a meeting of CEO’s or one where the conversation seems likely to walk right up to the antitrust line. Even when no attorney is present, it is a good idea to have one on call to handle any unexpected questions.
Rules still apply after the meeting
Antitrust rules can be broken just as easily at the cocktail party after the meeting as they can during the meeting. (Or, in these socially-distanced times, the Remo virtual cocktail party.) It is not an antitrust violation to get the contact information of your counterpart at a competitor during an association meeting; however, if you call him in his office the next day, you still need to follow the antitrust rules.
Approval for one thing is not approval to do everything
Each meeting of competitors raises its own potential antitrust risks. Just because you safely met with your competitors to organize the association’s charity golf tournament does not mean you can safely gather the same people next month to agree to boycott the one supplier who refused to sponsor the beer cart. Even if most of the activities of a trade association are benign, just one bad activity can cause severe problems for the association and all its members.
So congratulations on the invitation to your first trade association meeting! Follow these tips and you will be able to attend many more. If you are ever in doubt, contact your friendly antitrust lawyer. Better to seek our guidance and permission beforehand because we might not be able to provide forgiveness afterwards.