Trade associations, by their very nature, bring industry competitors together. Accordingly, appropriate safeguards must be implemented to avoid the anticompetitive evils that antitrust laws are designed to prevent. These safeguards take many forms and they vary from common sense guidelines, to the development of strict, written bylaws.

Given the nature of trade associations, the potential for antitrust violations as association-sponsored functions are quite obvious. Association officers and staff must be educated regarding potential antitrust violations and they must actively monitor and control the activities of members at their functions. Illegal activity at association-sponsored functions can lead to antitrust liability on the part of the association. In addition, it could lead to antitrust liability on the part of individual participants.

In order to minimize the risks to an association, its officers, and its committee members, the association should implement, emphasize, and enforce carefully drafted bylaws that highlight the procompetitive objectives of the association. Associations should also require that counsel be present during board and executive committee meetings where decisions having competitive impact are made. An association’s counsel should also monitor the activities of all committees that address sensitive issues such as the development of industry standards, or product certification.

The voting procedures established by association bylaws must be carefully drafted to avoid certain pitfalls. Certain voting procedures are susceptible to charges of discouraging competition. Such procedures can involve the weighting of votes, or the implementation of a system whereby a minority can block membership to the association.

An area of particular importance is the procedures implemented for association communication. The manner and content of association communications are critical in evaluating association conduct in an antitrust action. Accordingly, it is suggested that all aspects of association communication be periodically reviewed by counsel, and that key written communications be reviewed before they are distributed. Careless language by an individual unaware of antitrust implications can lead to a great number of problems, even in the absence of illegal activity.