Over a hundred years ago, anti-trust laws were enacted to
regulate monopolies. Anti-trust laws are
basically “competition laws” that promote competition and prohibit
anti-competitive practices. They apply both to individual businesses and to
trade associations such as the VHMA and their members. The Sherman Act prohibits contracts,
combinations, and conspiracies that restrict trade or result in monopolization and
the Federal Trade Commission Act establishes prohibitions against unfair
methods of competition and unfair or deceptive business practices.
Examples of things that can be considered violations of anti-trust
laws are agreements between competitors to fix prices, to allocate territories,
or to boycott or refuse to deal with third parties. Price fixing includes much more than just an
agreement to set prices at a specific level. It potentially includes any agreement to raise, fix, stabilize or
otherwise affect current or future prices. Agreement to control factors that indirectly affect price, such as
establishing service levels, discounts, credit terms, or matters that relate to
cost when those costs account for a substantial percent of the final price are
also considered price fixing. For example, managers from neighboring clinics
could be accused of price fixing for discussing Senior Discount programs at
their hospitals or agreeing to offer free spays and neuters to pets adopted
from a local rescue group. Posting
discussions online regarding the pricing for wellness plan packages can also be
considered price fixing.
It is a violation of anti-trust laws to agree to not compete
which includes dividing up territories or services or products sold. Boycotts in any form are illegal. Discussions relating to boycotts should be
avoided, including discussions about blacklisting or unfavorable reports about
particular companies. Anti-trust
violations are considered “illegal per se”, which means the acts are inherently
illegal, regardless of the reasonableness of such actions or lack of knowledge
of the laws.
The penalties for anti-trust violations can be very
severe. Some violations of the Sherman
Act are felony crimes for which individuals can be imprisoned for up to 10
years and/or fined up to $1,000,000 and corporations can be fined up to $100
million for each offense. Even if you
are cleared of all charges, legal fees to defend against anti-trust violations
can be extremely expensive.
It is not enough to just make sure you are not actively
violating anti-trust laws. A person’s mere presence at a meeting where an
illegal conversation takes place can be sufficient to conclude the person is
part of an alleged conspiracy, even if the individual disagrees with it. If you are present when an illegal
conversation is occurring, it is best to quickly speak up about the potential
for anti-trust violations. If the
conversation does not cease immediately, then you should leave after asking for
your objection to be noted in the record.
The VHMA takes complying with anti-trust legislation very
seriously. VHMA's Code of Conduct contains information on what is
and what isn’t acceptable when dealing with potentially sensitive issues. By taking care to comply with these
policies, you not only protect VHMA but also yourself and your practice.