In response to questions brought up in the thread Fee structure for house plans that will be used for a 300 home development., attached are two documents related to antitrust. The Guidelines provides a quicker overview, while the Statement provides a more comprehensive understanding.
From our General Counsel, some context:
The Sherman Antitrust Act, dating back to 1890, prohibits "every contract, combination, or conspiracy in restraint of trade," subject to a variety of interpretations by the courts over the past 129 years. Some actions are viewed as so inherently harmful to competition that they automatically violate the Sherman Act. They are known as per se violations, and they include price-fixing. An individual convicted of price-fixing (or otherwise found to have violated the Sherman Act) is subject to a fine of up to $1 million and imprisonment for up to 10 years.
The U.S. Department of Justice and the Federal Trade Commission (FTC) are specifically charged with enforcement of federal antitrust laws. The FTC has noted that antitrust scrutiny may occur when competitors discuss the following topics (among others):
- Present or future prices
- Pricing policies
- Promotions
- Bids
- Costs
- Capacity
- Terms or conditions of sale, including credit terms
- Discounts
- Identity of customers
- Allocation of customers or sales areas
- Production quotas
- R&D plans
You will note that discussing any of these subjects in a manner that might be viewed as anticompetitive by antitrust enforcers could be interpreted as part of a “combination” or “conspiracy in restraint of trade.” The line between what can and can’t be discussed is often hard to define, and often counterintuitive to those who don’t practice antitrust law. It is for that reason that we monitor discussions about price carefully, and guide the conversation away from dangerous territory.
I will add that the AIA’s concerns about antitrust subjects are founded in large measure on past experience. The AIA was a named defendant in a private antitrust lawsuit in the 1970s (and did not prevail), and was the subject of Justice Department antitrust investigations in the 1970s and 1980s. Long-time members will recall that, after the second investigation, the AIA was under court-ordered supervision on antitrust matters from 1990 to 2000.
For more information on the AIA’s antitrust compliance policy and guidelines on some of the things that might raise antitrust issues, please see the attached materials. If anyone would like to discuss this subject further, please contact me at jstephens@aia.org or at (202)626-7379.
Thank you.