It is the policy of the Nanotechnology Industries Association (hereinafter “NIA”) to comply with all applicable antitrust / competition laws to avoid even the appearance of improper activity. Compliance with antitrust / competition laws is the responsibility of all NIA participants, officers, staff, and consultants. Violation of these laws carries significant criminal and civil penalties.
The antitrust / competition laws broadly prohibit competitors from restraining competition among themselves with respect to the price, quality, or distribution of any products or services. These laws also forbid competitors from acting in concert to restrict the competitive capabilities or opportunities of their competitors, suppliers, or customers.
Certain practices are, under these laws, conclusively presumed to be unreasonable and thus “per se” illegal. Such practices include but are not limited to, entering into or facilitating any agreement among competitors on:
Prices or fees charged to customers
Bid-rigging to eliminate or reduce price competition
Dividing or allocating customers among horizontally competing entities
Dividing or allocating business based on geography or product markets
Group boycotts of competitors, suppliers, customers, employees or prospective employees
Naked wage-fixing or no poaching agreements
Such agreements need not be formal. They can be oral and informal, where the course of discussions among competitors or their conduct forms the basis for antitrust enforcement agencies or private plaintiffs to allege a collective decision.
In addition, certain practices, under these laws, may also be subject to antitrust analysis under the “rule of reason.” This means that conduct may or may not be permissible, depending on the facts and circumstances. Activities considered to violate antitrust under the “rule of reason” include but are not limited to:
Standards setting which preclude competition, or unnecessarily increase the price of a product or service
Exchanges of information on pricing, business plans, marketing plans, new product development, costs or profits which are not already publicly available information and are competitively sensitive.
Best practices or standards of conduct that have the purpose or effect of eliminating competition in the pricing of products or services.
Trade associations have long been recognized as serving a valuable, pro-competitive, and entirely lawful role in promoting economic development and consumer welfare. However, because trade associations provide a forum for competitors to interact with one another, and thus potentially engage in the type of prohibited activities identified above, serious problems can arise if a trade association’s activities are not properly conducted. It is thus vital that all meetings and activities of the NIA be conducted to avoid even the appearance of improper conduct. The NIA should be consulted in advance of undertaking any activity that raises potential antitrust / competition law concerns.
If at any time during the course of any meeting or activity, NIA personnel believe that a sensitive topic under the antitrust laws is being discussed, or is about to be discussed, they will so advise those present and halt further discussion. Attendees at any NIA meeting or other activity should likewise not hesitate to voice any concerns they may have in this regard. All NIA members and personnel share in this important responsibility.
The Nanotechnology Industries Association’s Antitrust Compliance Booklet contains further guidance. If you have any questions, please contact antitrust@NIAGlobal.com.