Potential antitrust violations are inherently present at all meetings of trade associations because an essential element of an antitrust violation—a combination of competitors—exists. Discussions can generally involve any subject without raising antitrust concerns if they are kept free of even the suggestion of restraint of trade, or the selection of suppliers, customers, or prices.
Examples of conduct that clearly restrains competition and is presumptively unlawful include:
- PRICING: Agreements to raise, lower, stabilize, or in any other way establish retail (i.e., customer or patient) price, or factors related to retail price, such as costs, wages, discounts, credit terms, or profit levels. Discussions of the ethics or propriety of pricing practices, such as price adjustments, discounts, and credit terms, or whether said practices constitute an unfair trade practice. Discussions of past prices may also be suspect;
- PROFIT: Discussions concerning what constitutes a “fair” profit level. Profitability claims, whether communicated verbally or in writing, are prohibited;
- MARKETS: Agreements to allocate or control markets, sales territories, customers, or geographic territories;
- RESTRAINT: Agreements to restrict or affect the availability of products or services or the terms or conditions of their sale;
- AGREEMENTS: Agreements requiring customers to purchase an ancillary item or service in order to buy the desired product or service, agreements to refrain from competition, and agreements refusing to deal with third parties (boycotts).
Other areas to be scrutinized for antitrust compliance include discussions concerning membership, fees and services for members and non-members, statistical programs, joint research programs, standard-setting, group buying and selling programs, and certification.
OMA seeks to avoid antitrust violations in connection with association activities, so participants should avoid engaging in conduct—in meetings or socially—that gives even the appearance of an impermissible conversation, agreement, alliance, or impropriety.
OMA meetings are conducted in such a way as to minimize allegations of antitrust improprieties. OMA’s specific agenda and related topics will be adhered to at all times. All OMA attendees have the right to object to discussing any subject. All OMA moderators and speakers should avoid discussing or making recommendations on subjects of questionable legality and should halt discussions of impermissible subjects. Less sensitive but suspect subjects, such as matters relating to data collection, cooperative research, and standard-setting, should be deferred until counsel can be consulted. Secret meetings held when official OMA meetings are scheduled should be avoided.
Disregard of these considerations can result in antitrust exposure for OMA, as well as for the individuals and companies involved. Civil and criminal penalties apply, and private rights of action are available to those alleging business interference or economic injury.