Adopted by Resolution of the Governing Board of the
FINANCIAL PLANNING ASSOCIATION
ANTITRUST COMPLIANCE POLICY STATEMENT
The Financial Planning Association (“Association”) desires to provide its members, board and committee members, forum participants, employees and staff with this antitrust policy to summarize the antitrust laws and explain the pitfalls resulting from activities which violate those laws. It is important to remember that federal and state anti-trust laws are complex and subtle. Nevertheless, it is hoped and expected that this policy statement will help each of our members recognize antitrust issues when they arise. No action which may be questionable under the antitrust laws should be taken before the matter has been reviewed by the President of the Association, and at the President’s discretion, by the Association’s Antitrust Counsel.
THE ANTITRUST LAWS
The basic federal antitrust law is the Sherman Act which makes illegal any contract, combination or conspiracy which unreasonably restrains trade. Section 1 is directed to agreements among competitors whose effect or purpose is to limit or inhibit competition. There are certain categories of activities which the law will find unreasonable under Section 1 by the mere proof of their existence. These are the “per se” violations of Section 1. “Per se” violations include agreements among competitors to fix prices, allocate territories, or allocate services.
Please note that criminal penalties apply to violations of Section 1 of the Sherman Act. It is a felony to violate Section 1 of the Sherman Act. A fine of up to $100,000,000 for corporations and $1,000,000 and imprisonment of up to ten years or both for individuals may be imposed upon conviction.
Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize or combinations to monopolize any line of commerce.
In addition to the Sherman Act, Section 5 of the FTC Act prohibits “unfair methods of competition and deceptive acts or practices in commerce.” This provision prohibits activities which either are violations or, if allowed to continue, would evolve into violations of the antitrust laws. Thus, Section 5 of the FTC Act covers violations of the “spirit” of the Sherman or Clayton Acts and activities which are not covered by those Acts.
The federal antitrust laws may be enforced by either of two federal government agencies – the Antitrust Division of the Department of Justice or the Federal Trade Commission. In addition, private lawsuits by individuals or by state attorneys general on behalf of their citizens (“parens patriae” suits) may be brought to recover three times the actual civil damages as well as attorney fees and costs. There have also been situations in which courts have ordered trade associations dissolved. The FTC Act is enforced through civil proceedings conducted by the Federal Trade Commission and only the Department of Justice may bring criminal actions under the Sherman Act. Many states, including Colorado, also make it a criminal offense to violate state antitrust laws.
CONDUCT TO BE FOLLOWED AT ALL ASSOCIATION-SPONSORED MEETINGS, CONFERENCES, EVENTS, AND ON-LINE FORUMS
Organizations such as the Association serve valid educational and community purposes. As such, the Association may engage in a wide variety of activities to provide educational opportunities for its members and others. However, the antitrust laws require that the activities of the Association members, as well as those of the Association itself, be conducted so as not to prevent or discourage competition. Accordingly, the Association offers the following advice with respect to participation in Association activities.
• DO refer all Association matters having potential antitrust implications to the President of the Association. Matters to be referred would include those where there is any suggestion or indication of a discussion of prices among Association members, agreements to divide markets or customers, allocation of services or boycotts/refusals to deal with prospective customers or suppliers.
• DO follow previously published agendas for all annual meetings, Board meetings, Executive Committee and other Committee meetings of the Association. Such meetings should be conducted pursuant to previously published agendas. Written minutes shall be prepared for each of these meetings.
• DO avoid loose, careless or flippant remarks, especially in correspondence, which can pose an antitrust problem for the Association if examined out of context at a later date.
• DO NOT discuss, agree or enter into any arrangement or contract with anyone who competes with you regarding your prices. This includes any discussion of competitive factors which may influence someone’s fees or costs. Even gossiping or joking about prices with competitors may be construed or later inferred to have been part of an agreement to fix prices.
• DO NOT exchange or discuss any competitive information when dealing or meeting with competitors (including on social media or on-line forums). Competitive information could include includes your fees, fee structure or rates, salaries of staff/employees, and similar information that could be inferred to have been part of an agreement to fix prices, fee, or salaries.
• DO NOT discriminate in your treatment of competing customers or vendors.
• DO NOT enter into exclusive dealing arrangements whereby your company requires as a condition of sale or purchase that another service provider deal exclusively with you, or agree not to deal with your competitors.
• DO NOT provide any customer with the understanding that the customer will sell your product or service only at certain prices or in certain markets or to persons specified by you.
• DO NOT try to guess what the law is; when in doubt, get help.