Antitrust Compliance Discussion Guidelines

The antitrust laws aim to protect the public from agreements between competitors or potential competitors that affect the price, quality or distribution of products while promoting fair and vigorous competition in the marketplace. As competitors in the market you should always act in your individual, competitive best interests. When competitors gather at meetings, however, there are legitimate concerns about the application of the antitrust laws to their discussions. This statement is intended to provide general guidance regarding the permissible areas of discussion.

Generally speaking, the antitrust laws are designed to outlaw agreements in restraint of trade, monopolies and attempts to monopolize. They expressly prohibit price fixing, tying arrangements, refusals to deal or boycotts, bid rigging, and division of product or service markets or geographic territories between competitors.

There is a limited exemption from the federal antitrust laws because of the McCarran-Ferguson Act, but that limited exemption does not apply to our hosted events. That exemption only extends to “the business of insurance” (that is, the exemption does not apply to insurers because of their status as insurers but only to the conduct of certain activities by insurers), and then only if the insurance activity is “regulated by state law.” In addition, insurers are not exempted by McCarran-Ferguson—under any circumstances—from Sherman Act antitrust liability for agreements to “boycott, coerce or intimidate.”

Insurers are particularly susceptible to allegations of price fixing, and therefore should generally avoid communicating with other insurers regarding specific marketplace terms and conditions or the current or future pricing or marketing of insurance products. Please give very careful consideration to the possible antitrust implications of what you say and do during our hosted events. Avoid any discussion of prices, costs, market shares, sales terms, market or territory allocation, product restrictions or any conduct that could be construed as a boycott. Discussions of those kinds of topics may be held to be per se illegal, which means that purpose and effect are irrelevant (a plaintiff or prosecutor need not prove you intended to violate the antitrust laws or to affect competition). Other commercial activities between competitors, or between suppliers and customers or distributors, may also be violations of antitrust laws if they constitute an unreasonable restraint of trade. Each participant should continue to make independent business and competitive decisions and is responsible for ensuring its own compliance with the antitrust laws. You should consult your own legal counsel if you have concerns or questions regarding potential antitrust issues or risks.

It is, of course, always permissible to discuss matters which have already been publicly disclosed or are otherwise a matter of public record, and to discuss public policy issues and plans to affect public policy, so long as those discussions do not involve agreements in restraint of trade, monopolies and attempts to monopolize, price fixing, tying arrangements, refusals to deal or boycotts, and division of markets or territories between competitors.

Please stay within the formal agenda for our conferences, frame questions and answers in hypothetical terms, and avoid any informal or formal discussion with each other relating to specific company plans.

(The antitrust laws do not apply to private discussions between an insurer and its reinsurer regarding the insurer’s business plans, including but not limited to products and prices, again so long as those discussions do not involve agreements in restraint of trade, monopolies and attempts to monopolize, price fixing, tying arrangements, refusals to deal or boycotts, and division of markets or territories between competitors.)

Insider Trading Compliance Discussion Guidelines

The securities laws aim to protect the fairness and integrity of the securities markets by, among other things, prohibiting “insiders” from illegally profiting from trading while in possession of material, non-public information about a security. Industry participants who gather at meetings should be mindful of this strict prohibition when engaging in discussions with other professionals and colleagues. This statement is intended to provide general guidance regarding illegal insider trading.

The securities laws prohibit a person from purchasing or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, non-public information. The securities laws also prohibit “tipping” others to such information, securities trading by the person “tipped,” and any securities trading by someone who “misappropriates” material, non-public information.

Examples of those who have been charged with insider trading violations include:

Corporate officers, directors and employees who traded corporate securities upon learning of material, nonpublic corporate developments;
“Tippees,” such as business associates, family members and friends of those corporate officers, directors and employees, who traded upon receiving the material, non-public information;
Employees of brokerage, banking, law and other firms who were given material, non-public information in order to provide services to a corporation and subsequently trade while in possession of that information; and
Others who take advantage of and “misappropriate” confidential information from their employers or as a result of certain non-business relationships.

Please give very careful consideration to the fact that you may possess significant, confidential information regarding your company or another company with whom you may have a fiduciary duty or other relationship of trust and confidence. Avoid any discussion of such information.