Antitrust Guidelines

Under the antitrust laws, company employees are not allowed to discuss certain topics with competitors. The following information should be heeded by company employees when communicating with fellow DMC Coalition members to avoid running afoul of the antitrust laws.

 

You should not discuss the company’s non-public, competitively sensitive information with competitors, including:

  • Strategic plans.

  • Current or future pricing amounts and discounts.

  • Bid amounts and terms, including decisions whether to bid or not bid.

  • Customers and key sales strategies.

  • Salaries and wages, or limitations on hiring a competitor’s employees.

  • Planned geographic growth.

  • Limits on sales levels or sales of certain products to certain regions.

  • Output or capacity levels.

  • Business expansion or contraction plans.

 

In addition, do not:

  • Agree to, or discuss, refusing to do business with any competitor, customer, or company in the supply chain.

  • Agree to, or discuss, any limitations on your company’s activities or independent decision-making, such as changing the way you adjust pricing amounts or make output decisions.

  • Exchange non-public, competitively sensitive information with competitors.

 

If these topics come up during a communication with a fellow DMC Coalition member:

  • Interrupt the meeting and suggest pausing the conversation until it can be vetted by Cataudella Law, APC ("Cataudella Law").

  • If, after vocally objecting, the conversation continues, state that you are leaving the conversation and ask that the minutes or record (if applicable) reflect your concern and departure.

  • Promptly leave and immediately contact Cataudella Law. 

It is possible that, if the discussion steers towards a sensitive topic, it will be less obvious or overt than the per se violations discussed above. For this or other reasons, it may not be feasible to immediately interrupt or leave the discussion. If that happens:

  • Avoid participating in the discussion.

  • If you feel comfortable, suggest that the discussion be delayed until vetted by Cataudella Law.

  • If the discussion continues, leave as soon as possible.

  • Immediately contact Cataudella Law.

 

If an inappropriate discussion arises during a side conversation in which you are involved, insist that it end immediately. If it continues, announce your intent to leave because you feel it violates the law. Leave, and immediately contact Cataudella Law.

Permissible Conduct and Information Exchanges

Lawmakers and regulators recognize that organizations like DMC Coalition often promote competitively benign or pro-competitive activities, such as:

  • Sharing non-strategic technical or scientific data that results in consumer benefits.

  • Collecting publicly available information about the industry, organizing it, and disseminating it to industry participants.

  • Setting industry standards that increase product interoperability, compatibility, or safety.

  • Creating a public website that informs customers about a complicated industry.

  • Lobbying efforts.

  • Coordinating collection and exchange of historical, aggregated industry data.

 

To that end, not all information exchanges with fellow DMC Coalition members are prohibited. There are safe harbors to guide information exchanges with pro-competitive or benign purposes. Generally, information is not considered competitively sensitive if it is:

  • Highly technical and nonstrategic.

  • Collected and aggregated by a third party.

  • Three or more months old.

  • Data aggregated from five or more firms, where no firm counts for more than 25% of the aggregated value, and it is impossible to identify any individual firm.

 

Pro-competitive or benign information exchanges that reduce fraud or confer consumer benefits are particularly encouraged.

Last Updated: September 1, 2020

© 2020 by Cataudella Law, APC

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