In light of some recent developments in the industry FCA believes it is appropriate to remind and refresh Affiliates and our Contractor Members of the particular care that we must all take – both as members of your local affiliate and FCA International – to avoid engaging in any behavior that may unwittingly run afoul of U.S. antitrust laws.
While trade associations – both Affiliates and FCA International - serve important pro-competitive functions, they also bring together competitors, which creates heightened risks under the antitrust laws. It is imperative that associations have strong compliance programs that go beyond merely adopting a policy and are vigilant about maintaining a culture of compliance.
Antitrust law is wide ranging, complex and touches many parts of our industry. In its simplest form, it is designed to ensure that fair competition exists in an open-market economy. There are three basic elements that make up unlawful behavior in the antitrust context: 1) an agreement of 2 or more parties; 2) to take anticompetitive actions; 3) with the effect of restraining trade or reducing competition. The parties to the agreement collude with one another to engage in an agreed upon act or behavior. This act or behavior must be shown to be anticompetitive, or otherwise restrain trade.
The forms of collusion most commonly found in the construction industry include: bid rigging, price fixing, group boycotts and market allocation schemes.
With respect to group boycotts, as purchasers of materials any collective action by buyers to set an agreed upon price to be paid, control the availability of services or products, or encourage boycotts is considered a per se violation of antitrust law. Individual members of an association are free to discuss issues that are of mutual interest and concern. Such discussions, however, cannot be the basis for advocating or for taking any collective action by a group of buyers. Associations and their members may share developments and their individual thoughts, but members must refrain from seeking to enlist other members to follow their lead or to act as a group, so as to engage in a boycott.
FCA has a model antitrust policy available for Affiliates and Contractor Members to view. If you have any questions please don’t hesitate to contact FCA at firstname.lastname@example.org.