Distribution, Competition, and Antitrust / IP Law

Trade Associations and Selling to the Government

I’ll have more to say about trade associations in future posts.  For now, keep in mind that trade associations are collections of competitors that frequently meet together.  Although they often take pro-competitive actions (by improving efficiency, setting industry standards, and communicating with the public about key issues), they also can take actions that prompt antitrust claims (either the conspiracy type, monpolization type, or both).

Trade associations (and everyone else, for that matter) do enjoy an antitrust immunity for government petitioning under the so-called Noerr-Pennington doctrine, which is derived from the First Amendment.  However, what happens when an association’s members sell to the government?

In that case, associations must be extra careful when they lobby.  Some courts have held that Noerr-Pennington doesn’t apply, because selling, not petitioning, is occurring.  To avoid such a result, associations should remind all members that they must act independently in the market when setting prices.  Associations should also focus on broad policy arguments, not pricing, and lobby only relatively senior officials, while staying away from procurement-level personnel and organizations.

 

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About Howard Ullman

Antitrust, competition, and IP law enthusiast.

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