Liability and Penalties for Antitrust Violations

• Pages: 51-62

51

CHAPTER III

LIABILITY AND PENALTIES FOR ANTITRUST

VIOLATIONS

Trade and professional associations and their members face a range

of potential criminal, civil, and administrative sanctions for violating the

antitrust laws. This chapter provides an overview of association and

member liability and the potential penalties for violations of the U.S.

antitrust laws.

A.Antitrust Liability of Associations and Members

The actions of an association may expose the entity itself to antitrust

liability. Among the activities that have resulted in associations being

named as defendants are price fixing, exclusionary industry standards,

membership restrictions, anticompetitive information exchanges, and

restrictions on price advertising.

1

Associations have been sued under

Section 1 of the Sherman Act where they have negotiated prices for

products or services on behalf of their members,

2

and ratemaking

associations, among others, have been held liable for price fixing.

3

In

recent years, the FTC and DOJ frequently have challenged

anticompetitive activities by associations of health care providers.

4

1. See, e.g., FTC v. Super. Ct. Trial Lawyers Ass’n, 493 U.S. 411, 428-36

(1990) (price-fixing boycott by association of court-appointed counsel

held per se unlawful); FT C v. Ind. Fed’n of Dentists, 476 U.S. 447, 461

(1986) (agreement to withhold dental X rays from insurers held unlawful).

2. See, e.g., NCAA v. Bd. of Regents of the Univ. of Okla., 46 8 U.S. 85, 99

(1984); United States v. Sealy, Inc., 388 U.S. 350, 352-54 (1967).

3. See, e.g., Georgia v. Pa. R.R., 324 U.S. 439, 456, 460-61 (1945)

(railroads engaged in illegal price fixing thro ugh collective rate

publication); In re New England Motor Rate Bureau, 112 F.T.C. 200, 261

(1986), aff’d, 112 F.T.C. 263 (1989), rev’d on other grounds, 90 8 F.2d

1064 (1st Cir. 1990) ; In re Mass. Furniture & Piano Movers Ass’n, 102

F.T.C. 1176, 120 1 (1983), rev’d on other grou nds, 773 F.2d 391 (1st Cir.

1985).

4. See, e.g., United States v. Long Island Jewish Med. Ctr., 9 83 F. Supp. 121

(E.D.N.Y. 1997) ; In re White Sands Health Care Sys., 2005 FTC LEXIS