Participation in Trade Associations and Professional Societies

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CHAPTER IX

PARTICIPATION IN TRADE ASSOCIATIONS AND

PROFESSIONAL SOCIETIES

For antitrust compliance purposes, the functions performed by

insurance industry trade associations and professional societies can be

divided into two categories: (1) lobbying a nd advocacy, tha t is,

representing the interests of insurers in legislative, judicial, and regulatory

proceedings; and (2) other activities that do not directly or indirectly

involve governmental decisionmaking, such as dissemination of

information by means of surveys or reports, professional education,

creation of codes of ethics and professional discipline, public relations, and

standard setting.

The first category of conduct is analytically distinct from the second

because petitioning the government, with certain important exceptions,

qualifies for Noerr-Pennington immunity from the antitrust laws.

Activities that do not entail the influencing of governmental decisions have

no Noerr immunity and, absent the McCarran-Ferguson Act immunity,

will be fully subject to the antitrust laws.

These two categories of trade association activities are separately

analyzed below.

A. Petitioning Activities

1. Overview

Under the Noerr-Pennington doctrine, conduct designed to influence

government action is exempt from the antitrust laws subject to some

important exceptions. Noerr immunity is based on (1) the First

Amendment right to petition the government, and (2) judicial

interpretation of the antitrust laws, finding them inapplicable to restraints

of trade proximately caused by governmental action, even if induced by

private parties.

The Noerr doctrine protects efforts to secure action by all three

branches of government: legislative, executive, and judicial. The doctrine

originated in the Supreme Court’s decision in Eastern Railroad Presidents