An Antitrust Primer for Attending Trade Association Meetings and Assessing Antitrust Compliance

• Pages: 187-201

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CHAPTER 17

AN ANTITRUST PRIMER FOR ATTENDING TRADE ASSOCIATION

MEETINGS AND ASSESSING ANTITRUST COMPLIANCE

During the course of their careers, many lawyers who do not specialize in antitrust law are

asked to attend a trade association meeting to provide the legal function. Traditionally, this

includes handling antitrust compliance.1 Therefore this chapter is designed for use by the non-

antitrust specialist, either a lawyer or business person who is tasked with evaluating legal

compliance, to prepare for a meeting of a trade association.

Non-antitrust lawyers face several challenges in this situation, particularly if they have not

had prior involvement with the trade association in question. They must sufficiently inform

themselves of the basics of antitrust compliance to be able to fulfill their role at the association

meeting. They also must sufficiently inform themselves about the association’s activities so that

they can spot possible antitrust issues and provide legal guidance. They will need information on

the current antitrust compliance activities of the association (if any). And finally, to apply their

legal knowledge to the association’s activities, the outside lawyer will need background as to

how competition works in the industry in which the association and its members do business.

For a practiced antitrust professional, the fact-inquiries, legal analyses, and means of

counseling an association are stock-in-trade. But to most non-antitrust practitioners, these are

complex issues that require a formidable level of investment if they are to be handled

appropriately. Regardless, this investment must be made, because the risks of an antitrust

violation occurring at a trade association meeting are very real.2

Historically, associations, as a class of business, have been the single largest source of

antitrust cases under U.S. antitrust law. Associations continue to be the primary generators of

the hottest area in antitrust enforcement: cartel prosecutions.3 The focus on cartel prosecution

arising from associations has become a constant topic for U.S. enforcers; one official has stated,

“[s]o much for the good part of trade associations, the bad part of trade associations is cartels.”4

By agreeing to provide the legal function at an association meeting, a lawyer who is not an

antitrust-specialist may be signing up for more than he or she bargained for.

1. See ABA SECTION OF ANTITRUST LAW, ANTITRUST AND TRADE ASSOCIATIONS:HOW TRADE

REGULATION LAWS APPLY TO TRADE AND PROFESSIONAL ASSOCIATIONS 154 (1996).

2. Id. at 153 (“adequate antitrust oversight of trade association activities is important for the legal

well-being of the association and its members.”)

3. See, e.g., Scott D. Hammond, Antitrust Div., U.S. Dep’t of Justice, Caught In The Act: Inside an

International Cartel, Address Before the OECD Competition Committee Working Party (Oct. 18,

2005), available at http://www.justice.gov/atr/public/speeches/212266.htm (“Another characteristic

of international cartels is that they frequently use trade associations as a means of providing ‘cover’

for their illegal activity.”).

4. Jon Leibowitz, Fed. Trade Comm’n, The Good, the Bad and the Ugly: Trade Associations and

Antitrust, Remarks Before the ABA Section of Antitrust Law Annual Meeting (Mar. 30, 2005),

available at http://www.ftc.gov/speeches/leibowitz/050510goodbadugly.pdf.