To help ensure compliance with federal and state antitrust and competition laws, NAFTZ officers, directors, members, staff, and meeting attendees should be aware of the various antitrust laws and how they apply to Association activities. Because NAFTZ Members have overlapping products or services and sometimes geographic markets, they must be particularly sensitive to the antitrust issues that can arise.
NAFTZ Members may be considered separate, competing entities for antitrust purposes. They will remain competitors and must not coordinate their business activities. It is especially important not to exchange material information with each other that might affect that competition, such as prices, terms or conditions offered to customers or vendors. Nor should certain matters be discussed, such as which customers they intend to serve, which vendors they will deal with, terms or conditions for contract arrangements, prices or costs for products or services, what services/products will be offered or developed, or other competitively sensitive information. In short, NAFTZ members and participants in NAFTZ activities should refrain from any communication, agreement or understanding, formal or informal, express or implied, which would or would tend to limit competition between meeting attendees in the sale or purchase of products or services. The following is not an exhaustive list of what may be considered anticompetitive and members should consult with their respective counsel for particular guidance.
1. Basic Principles
- Some of our Members are direct competitors.
- To be clear, those competitors may not agree to set or fix a price for product where they are competitors.
- They may not agree to divide markets: “You take one customer and we will take another” or “We will not compete for customers north of _________ and you should not south.”
2. General Guidelines
- Members must continue to treat one another as competitors and limit the information they share with the other accordingly.
- There may be no discussions, agreements, understandings, or exchanges of information that would eliminate or reduce competition between Members.
3. “Do’s” – Activities in which Members may engage:
- Continue to compete vigorously with other Members.
- Ensure current or future price lists, customer lists, marketing plans and cost information, as well as customer, supplier, vendor, and provider contracts and bid proposals are not exchanged with competitors.
- Use independent persons (lawyers, economists, consultants, and accountants) to evaluate competitively-sensitive information wherever practicable instead of providing such information directly to (or receiving such information from) another Member.
- Even parallel unilateral conduct taken by different parties may appear questionable (such as oneparty bidding, and the other declining to bid on new business where the customer expected two bids), and matters could be made worse by having any discussions with Members about future actions.
- Check with your legal counsel before you undertake any conduct you consider questionable under the antitrust laws.
4. “Don’ts” – Members who are competitors or potential competitors may not:
- Agree on prices or terms of sale or prices paid for products or services.
- Agree to allocate customers, territories or products in any way (such as by refraining from bidding on a contract they otherwise would have sought).
- Agree to halt a marketing campaign or other competitive initiative, or to alter plans for competitive bidding.
- Agree to alter current competition.
- Base individual business decisions on any sensitive information received from another party during meetings.
- Discuss or exchange information regarding customers, vendors, pricing policies, pricing formulas, prices or other terms of sale, business or marketing plans, bidding activities, costs or cost structures, profit margins, proprietary technologies, or product development efforts.
Questions regarding the interpretation of application of these guidelines, or the legality of certain communications between and among NAFTZ members should be discussed with NAFTZ and your legal counsel in advance.