FTC Settles Charges Under Section 5 For Barcode Resellers’ Invitations To Collude

On July 21, 2014, two Internet resellers of UPC barcodes settled charges by the U.S. Federal Trade Commission that they violated Section 5 of the FTC Act by inviting competitors to collude. An "invitation to collude" involves an improper communication from one firm to actual or potential competitors that the firm wants to coordinate on price, output, or other important terms of competition. In an invitation that the FTC deemed "particularly egregious" in its complaint, the FTC alleged that a principal from InstantUPCCodes.com sent an email to representatives of two other UPC competing resellers—Nationwide Barcode and "Company A"—inviting them to "match the price" of rival competitor, "Company B." InstantUPCCodes.com and Nationwide expressed a readiness to raise prices over several months if Company A would agree, but Company A never responded. While acceptance of the invitation would have constituted a per se violation of the antitrust statutes and criminal penalties,