SPFA has a policy on antitrust compliance. It states:
"Our policy is to comply with all federal, state and local laws, including the antitrust laws. It is expected that all company member representatives involved in SPFA activities and SPFA staff will be sensitive to the unique legal issues involving trade associations and, accordingly, will take all measures necessary to comply with U.S. antitrust laws and similar foreign competition laws."
It is a per se violation of the federal antitrust laws for competitors to agree on prices, limitation of supplies, allocation of customers or territory, or boycotts. "Per se" means that no legal defense can be used to mitigate this automatic violation.
Even an agreement by competitors that is for the good of society and our industry may be a violation of the antitrust laws if it could affect competition.
If a topic of antitrust concern is raised at any time during a meeting, note your objection for the record. If the topic continues to be discussed, you should leave the room immediately and contact SPFA's general counsel and your company's attorney for further guidance.
Ensure that every SPFA meeting, where members are present, has an agenda, the agenda is followed, and minutes are kept by SPFA staff of the proceedings.
Understanding and acting on the requirements of U.S. and foreign antitrust and competition laws sometimes can be difficult. If you have a question about the propriety of activities or discussions in SPFA, you are encouraged immediately to contact your company's legal counsel and SPFA management.
Read the SPFA Antitrust Guidelines for Conducting Meetings below
Antitrust Guidelines for SPFA Meetings
These Guidelines are also applicable to member conduct on any electronic, digital, or telephonic association correspondence, resources, tools, etc (including any online project management software, email, teleconferences, etc)
- Notice and Agenda
- Discussion Topics
- Presence of SPFA Staff Member
- Rump Sessions
When properly conducted, trade association meetings play a valuable role in promoting competition and consumer welfare. Trade associations must be acutely sensitive to antitrust issues, however, because their meetings also may provide opportunities to reach unlawful agreements.The criminal penalties for violating the antitrust laws are severe: corporations and other organizations may be fined up to $10,000,000 per offense, and individuals face fines of up to $350,000 and/or up to three years in jail. In addition, private parties injured by antitrust violations may sue for treble damages. The costs of defending an antitrust suit are usually very high. In light of these harsh penalties and costs, SPFA takes a conservative approach to antitrust issues. Its meetings must be conducted to avoid even the appearance that members are taking common action that might unreasonably restrict competition.
Notice & Agenda
Each SPFA meeting must be preceded by a notice mailed to the members. A copy of the meeting agenda should also be sent. This will alert the members to the business to be considered, enabling them to prepare for a productive meeting. The agenda can also alert members and staff to matters which may raise legal questions for which the advice of counsel may be sought prior to the meeting.
It is not possible to provide a comprehensive list of antitrust rules that would cover every situation that might be encountered at a SPFA meeting. Nevertheless, a prudent general rule, which is to be followed at all SPFA meetings, is that no commercial topics should be acted upon or even considered. To avoid the most sensitive areas, there should never be a discussion of the following topics at SPFA meetings. Any discussion referencing these topics will be dealt with immediately by SPFA staff. Corrective measures could include stopping the meeting until the concern is resolved, terminating the meeting, and reprimanding the offending party to include corrective guidance, removal from the meeting, or in some cases termination of membership.
Items explicitly not able to be discussed:
- Current or future prices or components thereof, including discounts, rebates, and credit terms;
- Product or installation prices, price lists or procedures for coordinating price changes;
- Sales or production quotas;
- Allocation or division of territories or customers along manufacturers, distributors, contractors, or retailers;
- Boycotting any part or denying any party access to markets, products, product inputs, or information;
- Identified individual company statistics, market shares, inventories or merchandising methods;
- Commercial practices of particular competitors or customers;
- Commercial liabilities, warranties, guarantees, or the particular terms and conditions of sales, including credit, shipping and transportation arrangements, or
- Anything dealing with "arm-twisting", trade abuses, or excluding or controlling competition.
When standardization activities are under consideration at a meeting, SPFA policy requires that the discussion be confined to technical, engineering and safety factors. Commercial considerations (warranties, guarantees, etc.) are not proper factors to be considered. Also, since SPFA standards are voluntary, there must be no agreement to adhere to them or any discussions as to when members will begin to offer products conforming to the standards.
Statistical programs are among the most valuable services an association can offer its membership. They are lawful so long as they are not part of a prohibited scheme to fix prices, allocate production or otherwise unreasonably restrain trade. At meetings at which statistical programs are being formulated or evaluated, members should refrain from disclosing or discussing individual company statistics. Nor should discussions in this area lead to statements about an individual company's plans for sales or production. All statistical programs are voluntary; no member may be coerced into participation.
The legal importance of minutes of SPFA meetings must not be underestimated. They are the official record of the association and represent the only contemporaneous evidence of what transpired at the meeting. They are one of the first types of documents that litigants and investigators request. The secretary is responsible to see that the minutes are clear, complete and accurate with regard to the actions which were taken and the justification for those actions. For the benefit of members, it should be noted that there is no such thing as a conversation "off the record" at the SPFA meeting. If you feel that your comments would be inappropriate for recording, they probably are not proper for a SPFA meeting and should not be made.
Presence of SPFA Staff Member
SPFA policy requires the full-time attendance of a member of the SPFA staff at every meeting where SPFA business is conducted. What constitutes "SPFA business" should be broadly interpreted. For example, members should not meet to discuss proposals for submission at a future SPFA meeting without a SPFA staff member present. If a member of the SPFA staff cannot attend the meeting, postpone the meeting. SPFA staff have been instructed in the conduct of meetings and are familiar with SPFA policy and procedure. They can alert the members to situations that pose antitrust pitfalls, some of which may be innocently and unintentionally approached by the members. The presence of a SPFA staff member is a safeguard the members must not forego.
When a SPFA meeting is adjourned, it should be over in all respects and not simply in name. Informal "rump" sessions present too great a temptation for "confidential" of prohibited subjects. If anticompetitive industry practices follow such meetings, the results could be disastrous for the member, the member's company and SPFA. Memoranda of these supposedly "secret" meetings often figure prominently in prosecutions for price fixing.
As noted previously, any time competitors meet, the potential for antitrust problems exist. SPFA policy and procedures have been established with the object of avoiding not only any violation of the law but also any action that might give the appearance of illegality or that might invite prosecution. By following the guidelines set forth here, members can meet to transact lawful Association business for the betterment of the SPF industry without incurring significant risks.
* These Guidelines are also applicable to member conduct on any electronic, digital, or telephonic association correspondence, resources, tools, etc (including any online project management software, email, teleconferences, etc)