Information Collection and Dissemination

• Pages: 77-91

77

CHAPTER V

INFORMATION COLLECTION AND

DISSEMINATION

One of the most use ful and pot entially procompetitive activities of

an association is the collection and dissemination of industry

information.

1

In some circumstances, however, association information

programs have been held unlawful under Section 1 because they

facilitated price fixing or other unlawful collusive activity.

2

Exchanges

of price information have drawn particular scrutiny, and evidence that

competitors shared price information may be circumstantial evidence of

a price-fixing conspiracy.

3

1. See M aple Flooring M frs. Ass’n v. United States, 268 U.S. 563, 582-83

(1925) (“the public interest is served by the gathering and dissemination

. . . of information with respect to the production and distribution, cost

and prices in actual sales, of market commodities”); United States v. U.S.

Gypsum Co., 438 U.S. 42 2, 441 n.16 (1978) (information exchanges “can

in certain circumstances increase economic efficiency and render markets

more, rather than less, competitive”); U.S. DEP’T OF JUSTICE &

FED. TRADE COMM’N, ANTITRUST GUIDELINES FOR COLLABORATIONS

AMONG COMPETITORS § 3.31(b) (2000) [hereinafter COMPETITOR

COLLABORATIONS GUIDELINES], available at http://www.ftc.gov/os/2000/

04/ftcdojguidelines.pdf (“The Agencies r ecognize that the sharing of

information among competitors may be procompetitive and is often

reasonably necessary to achieve the procompetitive benefits of certain

collaborations.”).

2. See, e.g., Hartford-Empire Co. v. United States, 323 U.S. 386, 427-28

(1945) (ordering dissolution of trade association whose statistical

committee assigned production q uotas to members); Med. X-Ray Film

Antitrust Litig., 946 F. Supp. 209, 221 (E.D.N.Y. 1996) (information

exchange “served as a kind of clearinghouse from which competitors

could gather information regarding current prices and impending price

increases in order to coordinate their pricing activities”); United States v.

FMC Corp., 306 F. Supp. 1106, 1143 (E.D. Pa. 1969) (information

exchange was part of a price-fixing conspiracy); see generally ABA

SECTION OF ANTITRUST LAW, ANTITRUST LAW DEVELOPMENTS 92-98

(6th ed. 2007) [hereinafter ANTITRUST LAW DEVELOPMENTS].

3. Compare In re Citric Acid Litig., 191 F.3d 1090, 1098 (9th Cir. 1999)

(trade association’s information collection activities did not support