by Jim Cavanaugh
 
Trade associations, which, by their very nature involve interaction among competitors, are subject to close scrutiny for antitrust violations. Criminal sanctions for inappropriate behavior have increased substantially over the past decade (up to $10 million for corporations and $350,000 and three years in jail for individuals!), so members must be very careful to keep their activities within the prescribed bounds.
 
The Investment Recovery Association strongly believes in competition and fair trade practices. Obviously, interactions among competitors cannot be avoided in an association atmosphere, so we have instituted a vigorous antitrust policy to help protect both the association and our individual members. That policy includes making member and associate member representatives aware of what is or is not acceptable behavior. This article should not to be construed or relied upon as legal advice. However, it is meant to provide some broad guidance when conducting meetings or interacting with fellow members of the association.
 
Anti Trust Checklist
At any meeting or social gathering, even incidental to the Investment Recovery Association’s activities, whether seriously or in jest, members and associate members SHOULD NOT discuss or exchange any information—even indirectly— regarding such things as price, proprietary information, bidding, market division or anything that could be construed as restricting trade.
 

PRICE: This is the biggest potential area for concern. Present or future prices, incentives, pricing patterns, pricing policies, discounts, markups, credit terms or any such similar topic MUST be completely avoided. Past price, once of historical record, holds somewhat lower risk, but still should be avoided.

 
PROPRIETARY INFORMATION: Also to be avoided are topics that could be construed as unique to an entity or proprietary, such as a company’s costs, output capacity, markets, inventory, sales, territories, distribution, marketing and the like.
 
BIDDING: Anything that relates to a company’s bidding procedures or response to bid invitations are off limits for discussion.
 
MARKET DIVISION: Matters relating to territorial restrictions, customer allocations, and restrictions on types of products or services must be avoided.
 
RESTRAINT OF TRADE : Anything that would appear to have the effect of excluding a customer or supplier from a market, including pressuring anyone to bring market dissidents in line or penalizing non-participants, are also completely off limits. Importantly, any specific questions regarding proper communication among or between members and associates should be directed toward legal counsel PRIOR TO engaging in such communications at any meeting or social gathering. A more complete

checklist is posted on the website at www.InvRecovery.org/Antitrust.

 
CONCLUSION: Err on the side of caution when entering into any discussions of our business with fellow members. It is urged that member and associate member representatives —at a minimum—adhere to all of these guidelines in order to avoid even the appearance of impropriety.