It is the policy of the Electric & Gas Industries Association (EGIA) and its members to strictly comply with laws and regulations applicable to their activities, including federal and state antitrust laws. It is further the policy of EGIA to assist its members in complying with federal and state antitrust laws. EGIA members, officers, Directors and staff are expected to conscientiously adhere to antitrust laws. EGIA will neither knowingly permit nor condone anti-competitive behavior, whether willful or inadvertent, in connection with any EGIA membership association activity.
EGIA understands that its activities are subject to scrutiny under the antitrust laws because it provides a forum where competitors and potential competitors can gather and share information about the way they conduct their business. Therefore, the members, officers, Directors and staff of EGIA must act carefully and cautiously in the way they conduct their activities to ensure they do not create situations that could be construed as violations of antitrust laws.
The antitrust laws seek to preserve a free competitive economy. As a general rule, competitors may not restrain competition among themselves through understandings or agreements as to the price, the production or the distribution of their products, or other agreements that unreasonably restrict competitive capabilities or opportunities of their competitors, their suppliers or their customers. The antitrust laws also prohibit monopolization and attempts to monopolize, unfair methods of competition, unfair or deceptive acts or practices, most discrimination in prices between different purchasers in the sale of a commodity, exclusive dealing arrangements, most tying sales and requirements contracts, some joint ventures/mergers/consolidations, and similar activities.
However, antitrust laws are often unclear in terms of applicability to any given conduct. Whether or not an antitrust violation exists depends purely on the specific conduct and facts involved in each instance. Notwithstanding the nebulous nature of the antitrust law, penalties for violating them, both civil and criminal, are severe.
EGIA programs are carefully designed and monitored on an ongoing basis to ensure compliance with antitrust law. Every EGIA member, whether organizational or individual, has a duty and responsibility under the law to avoid and prevent antitrust violations. Every EGIA member needs to understand basic antitrust laws, to recognize areas of potential antitrust risk, and to overtly object to and refuse to participate in any activity that poses antitrust risk until that risk is properly assessed and cleared by legal counsel or other qualified advisor.
AREAS OF RISK
It is not possible to provide a complete or specific list of activities that amount to an antitrust violation. However, it is helpful to identify areas of risk, where close attention can be paid to the possible anti-competitive nature of the agreements or activity involve. Some areas of risk include discussions of the following:
- Controlling or influencing current or future prices (for purchase or sale), controlling or influencing price increases or decreases, or stabilization or standardization of prices
- What constitutes a “fair” profit level
- Procedures for establishing selling prices, cash discounts, credit terms
- Control of sales levels, inventory levels or timing of sales
- Allocation or division of markets or geographical divisions of markets among competitors
- Agreements, recommendations or suggestions that members refuse to deal with certain other persons or firms (boycott)
- Whether or not the pricing practices of any competitor/industry member are unethical, or constitute an unfair trade practice
- Agreements limiting or restricting advertising
Again, some discussions relating to activities identified above will not amount to antitrust violations. However, discussions relating to them require thorough prior antitrust analysis and guidance in the discussion.
To avoid even the appearance of impropriety, as well as to avoid inadvertent violation of antitrust laws, all association board and membership meetings will be conducted in accordance with the following rules:
- A written agenda will be prepared and distributed in advance of each meeting. Agenda issues with potential antitrust implications will be reviewed and discussed by the executive director and/or chairman, if deemed appropriate. Additions to the agenda having potential antitrust implications should be postponed, or discussions of such matters held with legal counsel or other qualified advisor present.
- EGIA membership and Board meeting attendees will be reminded at the beginning of meetings of the existence and general content of these Antitrust Guidelines.
- Accurate, detailed meeting minutes of every meeting will be prepared and reviewed. Minutes will be approved at the next meeting.
- In the event of concern regarding potential antitrust implications of a discussion, discussion must be discontinued pending resolution of the matter through the executive director or legal counsel, if necessary.
- In the event that any member has a concern about potential antitrust implications of discussion during a meeting, he or she shall interrupt discussion and state that concern immediately. If discussion is not terminated and the concern resolved, the concerned member should state that he or she is leaving the meeting for that reason, and leave.
- Conversations involving discussion of matters in violation of this policy will not be tolerated at an association meeting, and violating parties may be ejected from the meeting by the chairman.
Electric & Gas Industries Association Antitrust Statement
(To be read aloud by Board Secretary or Meeting Facilitator at the beginning of any EGIA Board or general membership meeting.)
As a trade association of competitors, EGIA members, officers, Directors and staff must comply with and be mindful of antitrust laws. It is important that competitively sensitive matters are not discussed during this meeting/ on this call, including product pricing or costs, sales terms or conditions, production levels, allocation of geographic markets, setting profit levels; boycotts, and most other anticompetitive actions. EGIA will neither permit nor condone anti-competitive behavior, whether willful or inadvertent, in connection with any EGIA activity.
Conversations involving discussion of matters that may violate applicable laws and regulations should always be avoided, even in private settings, and cannot be tolerated in connection with any EGIA membership meeting or activity. Persons engaging in possible violations of EGIA policy during meetings or activities will be required to cease such activities, and if necessary, are subject to ejection by the meetings presiding officer or meeting facilitator.