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Antitrust Compliance -- "Dos" and "Don'ts" for a Company

Posted by attorney Howard Ullman

DO…

  1. Compete lawfully to advance the interests of this Company.

  2. Leave any place where rivals, competitors, or dealers begin to talk about prices, costs, or dividing or allocating customers or territories.

  3. Obtain as much information about competitors as possible from public sources.

  4. Record the sources of information you receive about competitors.

  5. Consult with the Legal Department before entering into any agreements or discussions with dealers, distributors, or other customers (generally, “customers") which would:

  • Restrict prices,
  • Restrict the promotional terms or lease terms on which the customer would do business,
  • Restrict the territory or applications in which the customer may resell,
  • Restrict the customers, or classes of customers to whom the customer may resell, or
  • Require the customer to deal exclusively with this Company or this Company’s products.
  1. Deal with each customer honestly and fairly and restrict your conversation to that customer’s business.

  2. Where the Company’s competitor is also its supplier or customer, restrict your discussions to the sales or purchase transactions between the parties.

  3. Review sales, advertising, and incentive offerings to customers with the Legal Department.

  4. When talking about competitors or competition, watch your language, avoid war terminology, military expressions, and words associated with other inappropriate behavior.

  5. Avoid exaggeration when describing our market share, our desire to compete, our knowledge of the marketplace, our products, prices, terms and conditions.

  6. Control your documents; follow the procedures for retaining and destroying documents and get advice from the Legal Department if you have any questions.

DON’T…

  1. Discuss current or future prices, costs, margins, or pricing strategies with competitors;

  2. Discuss current or future discounts, terms, or customer incentives with competitors;

  3. Enter any agreement or understanding, or suggest the possibility of entering any agreement or understanding, with competitors about:

  • Current or future prices, credit terms, discounts, or incentives,
  • Terms or conditions of sale,
  • Bids or contents of bids,
  • Exchange of competitive price or cost information,
  • The division or allocation of customers,
  • Profits or profit margins,
  • Sales territories or geographic markets,
  • The business of specific customers or classes of customers or credit information relating to specific customers or dealers,
  • Distribution plans or practices, or
  • Limits on a competitor’s method of doing business.
  1. Attend trade or professional association meetings where attendees discuss the items previously described. If those items are discussed – leave, tell everyone you are leaving because of those discussions, and contact the Legal Department.

  2. Talk to one dealer or customer about the business or marketing practices of another.

  3. Obtain information about a competitor’s prices directly from the competitor.

  4. Condition the sale of one product on the purchase of another without prior approval of the Legal Department.

  5. Condition the Company’s purchase of goods from a supplier on the condition that the supplier will use the Company’s products, without reviewing it with the Legal Department.

  6. Talk about the appointment or termination of a distributor, dealer, or retailer with a group of other distributors, dealers, or retailers.

Additional resources provided by the author

Federal Trade Commission: http://ftc.gov/bc/guidance.shtm
U.S. Department of Justice: http://www.justice.gov/atr/about/index.html

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