The American Retirement Association, the umbrella organization for five affiliate organizations, ASPPA, ASEA, NAPA, NTSA and PSCA (collectively the “ARA”), assigns the highest priority to full compliance with both the letter and the spirit of antitrust laws and it is vital that any ARA meetings be conducted in a manner consistent with this policy. It is important to bear in mind that those in attendance at any ARA meeting may be your competitors. ARA members should avoid discussing certain subjects when they are together-both at formal ARA meetings and in informal contacts with other industry members and should adhere strictly to the guidelines that follow. In general, the types of discussion that should be avoided are those that may suggest or tend to reflect agreements among competitors as to: price; terms of sale that could impact price; allocation of customers, markets, or territories; and boycotts or joint refusals to do business with others.
While many antitrust laws apply only to "concerted" action or "agreements," an illegal agreement can be found even without a "handshake" or express words or writings indicating agreement. Tacit understandings, including responding to pressure, exerting pressure, or doing "what is expected," can be sufficient. An implied agreement also may be inferred from actions or the result of those actions. For example, if two competitors discuss prices, and later adopt prices that are similar, a conspiracy to fix prices may be inferred, even though the competitors never explicitly "agreed" to do anything. Comments made in an informal environment may be used as proof of an agreement, even though the parties' subsequent actions actually were taken independently for sound business reasons. Thus, the safest rule of thumb is to avoid any discussions with competitors of topics, in association meetings or elsewhere, on which it would be illegal to agree. An informal verbal understanding could violate the antitrust laws. It is possible to break the law without a written contract or express agreement.
Antitrust laws apply to membership organizations such as ARA just as they apply to any individual company or group of competitors. Members should always avoid conduct that would violate the antitrust laws in the ordinary course of business.