Trade Combination Agreement
The concern about anti-dominance is, of course, that a trade association is fertile ground for the creation and enforcement of various illegal horizontal activities such as price agreements, territorial awards, group boycotts and other concerted actions. See z.B. In re Citric Acid Litigation, 191 F.3d 1090, 1097-98 (9th Cir. 1999). Third way – It is obvious that the exchange of product information and product development is contrary to antitrust law if this shared information is a precursor or counterpart to joint price agreements, territorial divisions or boycotts. See Engine Specialties Inc. v. Bombardier Ltd., 605 F.2d 1, 10-11 (1st cir. 1979).
If economics or experience so requires, a “practice with a tendency to restrict competition or reduce production on the facial level” is considered a violation of Section 1 and is condemned without a full economic analysis of its impact in each case. Broadcast Music, Inc. vs. Columbia Broadcasting System, Inc., 441 U.P. 1, 19-20 (1979); Northern Pacific Railway v. United States, 356 U.S. 1, 5 (1958); Cooperation Guidelines § 1.2 &3.1. But these things are not immutable. The behaviour, once considered an offence in itself, was then removed from this dark zone and the behaviour, which was once the subject of complex studies, was affixed with this label. See z.B. Addamax Corp. v.
Open Software Foundation, Inc., 152 F.3d 48, 51-52 (1998). As a general rule, with the exception of commitments, only horizontal trade restrictions (or agreements between competitors) are considered illegal per se. Despite all the preparations in the world for the union meetings, there will be some boring communications at these association meetings. These comments could include: • “Prices in the sector are too low. We`re going to slit our throats. Let us all be rational and reasonable about the prices we calculate. • “[Great customer] balances his weight. He doesn`t even pay us our fees. We all need to do something. For our part, we will no longer serve them. • [New product] Y is a deception; It`s no better than what we have on the market. There is no reason for us to adapt our specifications to approve this new product. In addition to ensuring that any trade association of which your client is a member is advised by a competent agreement advisor, you must prepare your client`s businessmen to handle the comments that sound as outlined above. The third rail – The after-hours, hotel room meeting on prices or customers.
IV. Final Thoughts A. Participants talk all the time. As an advisor, whether internally or externally, you will be informed by some, but not all, of such contacts without further investigation. B. Inform your customers of what is allowed, what is allowed in certain circumstances, and what is almost never allowed. Certain contacts and interactions are clearly permitted by antitrust law; some are likely to be authorised if treated correctly; some are quite risky if they are not verified in a meaningful and thorough manner; some are clearly unacceptable – the equivalent of the “third rail” in terms of anti-dominance. C. Encourage them to come and ask you questions. Most anti-dominant cartel problems don`t come with a handy label on your desk….