Preface

ix

PREFACE

The desirability of publishing an Antitrust and Associations

Handbook was noted several years ago by the leadership of what was

then known as the Trade Associations Committee of the Section of

Antitrust Law. The Section’s 1996 practice guide entitled Antitrust &

Trade Associations had its origins in a collection of papers presented at a

Section program and was not conceived as an integrated work. Despite

its high quality and great utility, the 1996 publication was incomplete in

some respects. Moreover, there have been significant developments in a

number of key areas in the intervening years. Nevertheless, what was

said in the Preface to the 1996 book remains true today:

Significant segments of American business and professions are

represented by trade and professional associations. Associations

increasingly serve as the focal point of change as the United States

economy shifts from a national to a global market, and new

technologies emerge that enable industries and professions to adapt

rapidly to these changing market conditions. To meet these challenges,

trade and professional associations have moved from a reactive role to

one of leadership. Associations are setting product standards, certifying

the expertise of professionals, and actively opposing or promoting new

legislative and regulatory initiatives.

The potential procompetitive benefits of trade and professional

associations are as apparent today as they were in 1996. It is also true,

however, that in 2009 as in 1996 association activities raise potential

antitrust risks. All practitioners are familiar with Adam Smith’s

comment about the inevitable tendency of competitors, when brought

together in one place, to conspire against the public good, and recent

international cartel cases provide sobering evidence that Smith’s

warning, though perhaps overstated, cannot be dismissed.

One of the challenges in preparing this Handbook is that the major

policy and case law developments in this area in recent years have

occurred in a variety of contexts that are, at least in some respects,

unlike the classic trade association. Those contexts include: