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Antitrust Issues for Trade Associations
It is the policy of the Polyurethane Foam Association, Inc., to comply in all respects with federal and state antitrust laws. All Association meetings will follow a formal, preapproved agenda for the purpose of conducting the business of the Association. Accordingly, discussion of any matters relating to competition among the members or relating to practices that may restrain trade with third parties is not permitted. These prohibited subjects include all aspects of prices, profits, discounts, allocating territories or customers, boycotts, transportation rates, contract bids, directing or recommending purchasing behavior or policies, or any other statements that may be construed as being anticompetitive. Any member should object on the record to any discussion that he or she finds inappropriate due to legal concerns. If the discussion continues, the participant should leave the room.
Individuals participating in meetings should be aware that opinions or conclusions reached at the meetings are not binding on them. Opinions and conclusions are merely informative; they may or may not influence the actions of the participants of the association. In order to provide some guidance, below are listed prohibited topics; general subjects that are allowed; and “Do’s and Don’ts.”
The following topics may be discussed:
1. Reporting economic trends within the general industry or profession.
2. Describing advances or problems in relevant technology or research relating to financial services.
3. Methods by which an individual or firm can become more profitable by acquiring better knowledge of its own costs.
4. Summarizing effective methods of purchasing and marketing products.
5. Relations of the industry with local, state, or federal governments.
6. Reporting on experiences and developments in employment relations.
7. Discussions relating to general consumer opinions, actions or issues.
Under the federal antitrust laws, there is no defense to competitors agreeing to raise, lower, or stabilize prices or fees; limit supplies; refuse to deal; engage in boycotts; or allocate territory or customers (such conduct is a violation per se). This is the case independent of whether the actions being considered would help the industry or society in general. The following topics of discussion should be avoided:
1. Prices, such as price differentials, markups, or discounts.
a. Discussions of past pricing should be done with caution.
b. Participants should not discuss the pricing practices of any industry members, even if only to show they are unethical or constitute an unfair trade practice.
2. Costs, such as credit terms or discounts.
a. Discussing what constitutes a fair profit or margin level.
b. Cash discounts, credit terms and control of sales.
4. Terms or conditions of sale, including brokerage fees or rebates.
5. Production, distribution or marketing of products.
6. Transportation rates.
7. Refusals to deal.
8. Bid procedures.
9. Market Share.
a. Discussions affecting the allocation of markets, territories or customers.
b. Encouraging boycotts or exclusion of products or services.
c. Encouraging unfair practices involving advertising, merchandising or qualifying for certification or accreditation.
d. Encouraging anyone to refrain from competing.
e. Limiting participation or excluding anyone from the industry.
10. Decisions to quote or not to quote a price for a product.
11. Customer or supplier classification, allocation or selection.
12. Sales territories.
13. Distribution method or channel.
a. Refusal to deal with a firm because of its pricing or distribution practices.
b. Fixed prices, terms and conditions of loans.
Specific Do’s and Don’ts
1. Do have legal counsel or an association staff representative attend each meeting.
2. Do schedule and attend meetings only where there are substantive matters to be discussed. The substance of the meetings should justify one’s attendance. Agendas should be prepared for each meeting. The agenda should be specific and should not include topics that may raise suspicion from an antitrust perspective.
3. Do review the meeting notice or agenda in advance of every meeting.
4. Do adhere to the agenda. As a general rule, items not on the agenda should not be discussed.
5. Do ensure that no topic or subject of doubtful legality is brought up for discussion. This is counsel’s responsibility; however, if counsel is unavailable, the association’s staff representative or any member who becomes aware of legal implications should halt the discussion and make an objection for the record. If the discussion continues, one should leave the meeting. The preceding also applies to any social or informal gathering.
6. Do make sure that minutes of all meetings are kept, and that they are reviewed prior to their approval.
7. Do use the association to promote the industry as a whole.
8. Do check with association staff, who will likely contact counsel, if there is doubt about the legality of any association policy or program.
9. Do cooperate with association counsel in all matters, particularly when counsel has ruled adversely about a particular activity.
10. Don’t allow or participate in secret meetings, since they could threaten legitimate association activities.
11. Don’t allow recommendations with respect to sensitive antitrust subjects to be made during meetings, especially those relating to price, markets or the selection of suppliers or customers. Pricing should not be discussed at all, while discussions in the less sensitive areas may be permissible.
12. Don’t establish programs or guidelines (implicit or explicit) that exclude certain members of the industry.
13. Don’t make public or private communications about policies or positions of the association without specific authorization.
The following penalties may be imposed for violating antitrust laws:
1. Imprisonment Criminal violations are felonies. Because of sentencing guidelines, most convictions result in some prison time.
2. Fines Fines can be in the millions of dollars. Aggravating factors may enhance a fine.
3. Injunctive Court and Federal Trade Commission Orders Civil actions brought by the Department of Justice, Federal Trade Commission (FTC) or private parties may result in injunctions that prohibit future activities of the trade association. These injunctions may include broad prohibitions that would otherwise be legal under antitrust laws. Failure to comply with an injunction issued by a court can result in contempt proceedings with fines, while FTC injunction violations carry significant penalties.
4. Treble Damages Allows individuals or businesses that have been injured by antitrust violations to recover three times the actual amount of damages.
It is important to remember that any lawful activity that is done for improper purposes may be legal on its face, but courts may look at the cumulative effect and not look at each activity separately. Therefore, a legal activity when combined with other activities that result in price fixing would violate antitrust laws. Finally, good motives are not an excuse for actions that would otherwise be unlawful. A standardization program that increases competition and educates consumers may nonetheless be unlawful if conducted in a manner more restrictive than necessary to achieve its legitimate purpose.