Antitrust Risks for Trade Associations and Members: Ensuring Compliance Amid Intensive Federal Scrutiny

Trade associations and their members regularly participate in activities that involve potential antitrust pitfalls. The areas most vulnerable for antitrust violations are information exchanges, membership decisions, non-member access to association events and services, codes of ethics and advertising rules, and trade shows.

Associations and members must avoid even the appearance of anti-competitive intent in all activities to ensure they do not violate antitrust laws and regulations. Failure to comply with antitrust laws can result in millions of dollars in civil forfeitures, triple damages to individual plaintiffs, enormous attorneys’ fees, and even criminal sanctions.

Trade associations must have clear compliance programs in place to prevent conduct that would facilitate competitors unlawfully coordinating on pricing or competition. Recent cases offer critical guidance on antitrust compliance for counsel to trade associations and their members.

Listen as our panel of experienced antitrust practitioners examines potential antitrust pitfalls for trade associations and their members, discusses lessons from recent antitrust enforcement actions, and offers guidance for minimizing anti-competitive conduct.

1. Minimizing risk of antitrust violations for associations and members
   1. Agreements on prohibited subjects among competitors
   2. Membership issues and codes of ethics
   3. Marketing and trade shows
   4. Information exchanges
2. Potential immunities
   1. Noerr-Pennington
   2. State action immunity
   3. Standard setting
3. Antitrust compliance programs
   1. Dos and don’ts for the association and for members
   2. Association meetings
   3. Practical guidance for association meetings
   4. Lessons learned from recent litigation

The panel will review these and other key issues:

• What types of trade association activities most commonly trigger antitrust concerns and investigations?
• What are the critical steps trade associations and their members should take to minimize the risk of antitrust violations?
• What legal theories are being used to attach antitrust liability to trade associations and members—and what defenses are available?