Violations of anti-trust laws can result in both criminal and civil liability. The laws are enforced through civil damage actions by governmental authorities and private individuals or companies. Penalties can be severe for both individuals and employers, and include possible imprisonment and fines.
The major anti-trust law, the Sherman Act, prohibits agreements or other forms of concerted or joint action with competitors or customers that unreasonably restrain competition. To be illegal, a joint action need not be in the form of a written agreement or even a handshake agreement, but may be inferred from conduct. For example, if two competitors discuss fees and later adopt similar fees, a conspiracy can be inferred.
1. Agreements with competitors regarding prices or fees for services are prohibited. It does not matter whether prices are increased or decreased, reasonable, uniform, or whether the agreement involves pricing based on a formula. Conditions of service, discounts, or terms are discussions about price. Fees and prices should be arrived at independently. Competitors should never discuss fees or prices.
2. Agreements among competitors not to offer services to certain customers, or not to buy from certain suppliers or vendors, are considered illegal boycotts. Competitors should not agree about reporting or not reporting information to particular credit bureaus. All decisions regarding whom to service, from whom to buy services or products, and to whom to provide data are independent decisions. Competitors may discuss formats, legal requirements, or quality of service they receive, but should not discuss with whom they will deal.
3. Competitors should not agree to obtain customers only from certain geographic territories. An agreement to divide or allocate territories, or refrain from soliciting customers in certain geographic areas, violates the anti-trust laws. It is also illegal to allocate customers. All potential customers should be fair game for all competitors. Competitors should not talk about who has or gets which customer.
4. Additional anti-trust issues of which participants need to be aware do not involve agreements with competitors, including the Clayton Act, the Robinson-Patman Act, and the Federal Trade Commission Act. In general, customers should not be sold one product or service on the condition that they buy another. This is called an illegal tie-in. Customers should not be forced to deal only with one service provider in an exclusive arrangement. A customer may make the decision to deal with only one company, but an exclusive arrangement should not be a condition to engaging in business. In certain circumstances, discriminating in price to similarly situated customers in the sale of commodities is prohibited.
5. An exception to discussing issues that it would otherwise be illegal to discuss, are conversations involving the plans relative to attempting to influence legislation or regulations. The discussion must relate to lobbying, campaign contributions, media campaigns, or grass roots activities in an effort to influence legislation. Care should be taken in these discussions, and an attorney should be present.