The Federal Trade Commission (FTC) recently settled two cases against trade associations where the FTC claimed limited competition among the association members. These cases demonstrate a deliberate enforcement agenda by the FTC and other law enforcement agencies to target trade association rules, membership criteria, ethical codes and governing documents in order to set antitrust compliance standards and avoid potential threats to competition.
Trade associations should review their bylaws, ethics codes and membership documents to make sure that they do not include language that could restrict competition. Trade associations should also ensure that they eliminate any committee oversight meant to enforce anticompetitive restrictions. In addition to FTC actions under Section 5 of the FTC Act, trade association governance materials and actions are subject to challenge under the Sherman Act and other antitrust laws.
Please contact any of the lawyers listed in this publication for more information about trade association governance and antitrust compliance programs for trade associations.