The Secure Cash & Transport Association (“SCTA”) has adopted an antitrust policy which is designed to minimize the risk of violating antitrust laws while at SCTA functions, including through formal and informal discussions before, during, and after SCTA functions. At the heart of this policy are subjects that may directly or indirectly affect competition, all of which deal with how companies compete against each other. Companies compete at many levels and in many ways, and discussion of any subject that touches on how they compete requires great care or may even be prohibited. Trade associations and their members are in a particularly sensitive position because so many competitors find themselves together at association functions, when the opportunity to talk about competitive subjects presents itself. Although discussions themselves may not violate the antitrust laws, discussion followed by uniform conduct can give rise to an unlawful agreement. Even the appearance of behavior that violates antitrust laws can lead to prosecution by the government or to lawsuits by companies or individuals damaged by anticompetitive conduct.
Some subjects are closer to the competitive process than others and must be avoided altogether, while others are less sensitive and may be discussed with great caution.
ANTITRUST compliance POLICY
1.0 Antitrust Compliance Policy
The association’s policy is to comply with all federal, state and local laws, including the antitrust laws. It is expected that all company member representatives involved in association activities and association staff will be sensitive to the unique legal issues involving trade associations and, accordingly, will take all measures necessary to comply with U.S. antitrust laws and similar foreign competition laws. The association recognizes the potentially severe consequences of failing to comply with these laws.
Our association brings significant, procompetitive benefits to industry participants, suppliers, and customers. It must not, however, be a vehicle for firms to reach unlawful agreements regarding prices or other aspects of competition, or to boycott or exclude firms from the market.
2.0 Antitrust Violations Can Have Severe Consequences
Violations of the antitrust laws can have very serious consequences for the association, its members and their employees.
2.1 Criminal Penalties
Antitrust violations may be prosecuted as felonies and are punishable by steep fines and imprisonment. Individual violators can be fined up to $1 million and sentenced to up to 10 years in federal prison for each offense, and corporations can be fined up to $100 million for each offense. Under some circumstances, the maximum fines can go even higher than the Sherman Act maximums to twice the gain or loss involved. The events that give rise to an antitrust violation often provide the basis for other charges, such as wire fraud, mail fraud, and making false statements to the government. Those charges, if proven, carry additional penalties.
The consequences of a criminal antitrust violation for an association or corporation include: exposure to follow-on treble damages suits, exposure to enforcement actions in other jurisdictions or countries, disruption of normal business activities, and the expense of defending investigations and lawsuits. The consequences for an individual who commits an antitrust violation include: loss of freedom (jail), loss of job and benefits, loss of community status and reputation, loss of future employment opportunities, and exposure to litigation.
2.2 Civil Penalties
In contrast to criminal actions, civil cases can be initiated by individuals, companies, and government officials. They can seek to recover three times the amount of the damages, plus attorney's fees. Even unfounded allegations can be a significant drain on association and membership financial and human resources, and an unproductive distraction from the association's mission. For these reasons, the association strives to avoid even the appearance of impropriety in all its dealings and activities.
3.0 Basic Antitrust Principles and Prohibited Practices
3.1 Antitrust Statutes
The principal federal antitrust and competition laws are the Sherman Act, the Clayton Act, the Robinson-Patman Act, and the Federal Trade Commission Act.
- The Sherman Act in broad terms prohibits “every contract, combination . . . or conspiracy” in restraint of trade, as well as monopolizing, attempting to monopolize, or conspiring to monopolize any part of trade or commerce.
- The Clayton Act prohibits exclusive dealing and “tying” arrangements, as well as corporate mergers or acquisitions which may tend substantially to lessen competition.
- The Robinson-Patman Act prohibits a seller of goods from discriminating in price between different buyers when the discrimination adversely affects competition. This statute applies only to sales of commodities; it does not cover sales of services or intangibles.
- The Federal Trade Commission Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices” in or affecting commerce.
3.2 “Hard Core” Offenses (Criminal Prosecution Likely)
Certain antitrust violations are referred to as “hard core” or “per se” offenses. Conduct that falls in this category is automatically presumed to be illegal by the courts, and the absence of any actual harm to competition will not be a defense. Conspiracies falling in the hard core category are likely to be prosecuted as criminal offenses, and include the following:
- Price-fixing agreements: Agreements or understandings among competitors (or potential competitors) directly or indirectly to fix, alter, peg, stabilize, standardize, or otherwise regulate the prices paid by customers are automatically illegal under the Sherman Act (“illegal per se”). An agreement among buyers fixing the price they will pay for a product or service is likewise unlawful. “Price” is defined broadly to include all price-related terms, including discounts, rebates, commissions, and credit terms. Agreements among competitors to fix, restrict, or limit the amount of product that is produced, sold or purchased, or the amount or type of services provided, may be treated the same as price-fixing agreements.
- Bid-rigging agreements: Agreements or understandings among competitors (or potential competitors) on any method by which prices or bids will be determined, submitted, or awarded are per se illegal. This includes rotating bids, agreements regarding who will bid or not bid, agreements establishing who will bid to particular 3 customers, agreements establishing who will bid on specific assets or contracts, agreements regarding who will bid high and who will bid low, agreements that establish the prices firms will bid, and exchanging or advance signaling of the prices or other terms of bids.
- Market or customer allocation agreements: Agreements or understandings among competitors (or potential competitors) to allocate or divide markets, territories, or customers are always illegal.
3.3 Sensitive Activities
There are other activities that, though typically not subject to criminal prosecution, are nevertheless sensitive, and may lead to investigations or litigation.
- Group boycotts: An agreement with competitors, suppliers, or customers not to do business with another party may be found illegal as a boycott or “concerted refusal to deal.”
- Exclusionary standard setting, certification or code of ethics: Trade association standards-development, certification programs, and codes of ethics generally are procompetitive and lawful. Such activities may be found unlawful, however, if they have the effect of fixing prices or if they result in firms being boycotted or unreasonably excluded from the market.
- Vertical price-fixing agreements: Agreements between suppliers and resellers that establish minimum resale prices may be unlawful.
- Tie-in sales: A supplier conditioning the sale of one product on the customer purchasing a second product may be unlawful.
- Exclusionary membership criteria: Membership criteria with the intent or effect of excluding and disadvantaging others is a red flag for careful legal review.
3.4 Other Activities
- Joint research and development programs: While not discouraged by the antitrust laws and potentially subject to some legislative protection, proposals for association involvement in these types of programs must undergo legal clearance and executive approval.
- Lobbying: While the association's right to lobby is subject to First Amendment protections, lobbying activities will be undertaken only after executive and legal review.
4.0 Guidelines for Meetings and Other Association Functions
Association meetings, conference calls, and other activities by their very nature bring competitors together, and although they generally are lawful and procompetitive, they also might provide opportunities to reach unlawful agreements. It is important to remember that an antitrust violation does not require proof of a formal agreement. A discussion among competitors of a 4 sensitive topic, such as the desirability of a price increase, followed by common action by those involved or present, could, depending on the circumstances, be enough to convince a jury there was an unlawful agreement.
In light of the costs involved in defending antitrust claims, even when they are without merit, it is necessary to conduct association meetings in a manner that avoids even the appearance of improper conduct. Generally, the best way to accomplish this is by following regular procedures and avoiding competitively sensitive topics.
Meetings of the association will be conducted according to these procedures:
- Whenever feasible, written agendas will be prepared in advance. Agendas will not include any subjects that are identified in these Guidelines as improper for consideration or discussion.
- Meeting handouts and presentations should, whenever feasible, be distributed in advance of meetings.
- Meetings should follow the written agenda and not depart from the agenda except for legitimate reason, which should be recorded in the minutes. Informal or “off the record” discussions of business topics are not permitted at meetings or other activities of the association.
- Accurate and complete minutes should be prepared. The minutes should include the time and place of the meeting, a list of all individuals present and their affiliations, a statement of all matters discussed and actions taken with a summary of the reasons therefor, and a record of any votes taken.
Because of their sensitive nature, certain topics will not be discussed at meetings of the association unless otherwise advised by legal counsel. These prohibitions apply equally to all association sponsored social functions or other informal association gatherings. Off-limit topics include:
- prices, pricing methods, or terms or conditions of sale;
- pricing practices or strategies, including methods, timing, or implementation of price changes;
- discounts, rebates, service charges, or other terms and conditions of purchase and sale;
- price advertising;
- what constitutes a fair, appropriate, or “rational” price or profit margin;
- whether to do business with certain suppliers, customers, or competitors;
- complaints about the business practices of individual firms;
- the validity of any patent or the terms of a patent license;
- confidential company plans regarding future product or service offerings; and
- any ongoing litigation.
5.0 Document and E-Mail Guidelines
Many antitrust investigations and lawsuits are fueled by poorly phrased or exaggerated statements in internal documents, with e-mails being a leading culprit. Common sense should be used when composing documents and e-mails. No matter how informal or private a communication is intended to be, it must be assumed that anything written in a document or email is potentially discoverable in an investigation or lawsuit. As a general rule, nothing should be put in writing that you would not want read aloud to a prosecutor, plaintiff's lawyer, or jury composed of people who know nothing about you or your business.
Examples of statements that should be avoided:
- Language suggesting guilt (such as “read and destroy”).
- Words of aggression or competitive exclusion (such as “dominate the market,” “kill the competition,” or “get rid of the discounters”).
- Statements or speculation regarding the legality or legal consequences of any action of the association.
- Statements suggesting or advocating that members of the association make joint decisions on pricing, production, capacity or other aspects of competition, such as references to “industry consensus,” “industry understanding,” “industry acceptance,” or “rational competition.”
6.0 Executive Responsibilities
The Board of Directors has the responsibility to oversee the implementation of the association's antitrust compliance policy. The President is responsible for day-to-day management and implementation.
All members will receive a copy of this compliance policy as part of their initial orientation and will be required to sign an acknowledgment that they have read it and have been given an opportunity to ask questions.
Member companies will be sent a copy of this compliance policy, which shall also be available on the association's website. The association's orientation for new board members will include a presentation on antitrust compliance and member responsibilities.
8.0 Complaint Investigation and Internal Enforcement
Reports of noncompliance or other complaints should be quickly sent to the President. If there is reason to believe that an antitrust violation may have been committed, an investigation will be undertaken promptly. If an instance of questionable conduct is presented, the President will consult with association counsel promptly to determine whether an internal investigation is appropriate.
Members that violate or fail to comply with this policy will receive a letter from association counsel. Because compliance with association policies is a membership requirement, membership can be terminated as a result of member company violations of the association's antitrust compliance program.