Antitrust Enforcement Against Trade Groups Shows Need For Diligence

Trade association activities continue to draw antitrust scrutiny. Through the first three quarters of 2017, the Federal Trade Commission (FTC) brought three cases against trade associations, making a total of eight such cases since 2014. (See FTC, National Association of Animal Breeders, Inc., Sept. 28, 2017; FTC, American Guild of Organists, May 26, 2017; FTC, Cooperativa de Me´dicos Oftalmo´logos de Puerto Rico, March 3, 2017.)

Over the years, the Department of Justice (DOJ) similarly has taken enforcement action and also has been active in issuing guidance on specific association conduct through its ''business review letter'' process. (See US v. Chiropractic Associates, LTD. 4:13-cv-04030 (D.S.D. 2013).) And in a Nov. 10 speech, the newly confirmed head of the DOJ antitrust division, Makan Delrahim, suggested that standard-setting organizations (SSOs) soon may be a focus of enforcement investigations to the extent their members are imposing licensing terms in a