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AntiTrust Guidelines

Financial Services Institute / AntiTrust Guidelines

AntiTrust Guidelines

Introduction

The Financial Services Institute, Inc. (FSI) is committed to operating within the spirit of all federal, state, and applicable international trade regulations and antitrust laws. Because FSI’s members are competitors, the purpose of this policy is to ensure that FSI-related activities that bring members together do not lead to activity in violation of antitrust laws or regulations, or create the perception thereof. In fact, these guidelines are designed to ensure that no FSI-related activities lead to the perception that any FSI members or staff have violated antitrust laws or regulations. These activities include, but are not limited to, FSI Council meetings, FSI Discussions, FSI conferences, meetings and forums, and other FSI-related events and activities.

 

Antitrust Laws & Regulations

The purpose of antitrust regulations is to preserve competition, which serves an essential function in our economy. Violations of antitrust laws may constitute a felony offense that involves prison time and/or severe financial penalties. Because the very nature of a trade association is to bring competitors with common interests together, FSI and our members must be particularly cognizant of ensuring staff and members do not engage in any activity that runs afoul of rules intended to protect fair trade.

While many of the antitrust laws and regulations apply only to concerted action or agreements, an illegal agreement can be found even without a “handshake” or express writing or words indicating such. Tacit understandings, including responding to pressure, exerting pressure, or doing “what is expected” can be sufficient. An implied agreement may be inferred from actions or the result of those actions. For example, if two competitors discuss prices, and later adopt prices that are similar, a conspiracy to fix prices may be inferred even though the competitors never explicitly agreed to conspire. Comments made in an informal environment may be used as proof of an agreement, even though the parties’ subsequent actions actually were taken independently for sound business reasons. Thus, the safest rule of thumb is to avoid any troublesome discussions with competitors of these topics. It is very important to remember that you may violate the antitrust laws by an informal verbal understanding.  No written contract or express agreement is required.

To ensure we operate within antitrust laws and regulations, FSI will adhere to the following policy and will publish this policy to its members, staff, and leaders on, at minimum, an annual basis.

 

Prohibited Conduct Subject to Antitrust Regulations

Discussions at FSI activities, meetings, or events shall be avoided if they are, or could be construed to be, having the purpose of collusion in violation of antitrust regulations. FSI staff and members shall not violate federal, state, or applicable international trade regulations and antitrust laws. Therefore, the following activities and discussions may not take place at any FSI related activity or within any FSI related group:

  1. Price-Fixing
    1. Agreeing to raise, set, or maintain prices, including, but not limited to: current or future prices, pricing procedures, cash discounts, credit terms, costs, fees, fair profit or margin levels;
    2. Agreeing to raise, set, or maintain prices as outlined in item 1a within a certain range so as to set a minimum, median, and/or maximum;
    3. Agreeing to discounts to all or certain types of customers;
    4. Regulating production levels or schedules concerning production facilities, capacity, or sales volume.
  2. Customer or Geographic Allocation
    1. Restricting customer or vendor classification, allocation, or selection;
    2. Allocating markets, territories, customers, or control of sales or market share in general;
    3. Fostering unfair trade practices, including those involving advertising, merchandising, standardization, certification, accreditation, decisions to quote or not, or encouraging anyone to refrain from competing.
  3. Group Boycotts
    1. Encouraging boycotts or exclusions of products or services;
    2. Assisting in monopolization, including limiting or excluding anyone from manufacture, sale, or practice;
    3. Refusing to deal with a firm because of its pricing or distribution practices;
    4. Discussing whether or not the pricing practices of any industry member are unethical or constitute an unfair trade practice.

 

FSI Action When Prohibited Actions or Discussions Occur

FSI members and/or staff shall be required to cease immediately any discussion or other activity that FSI’s counsel and/or staff have determined violates this policy.

Any member found to have participated in conduct that the Board of Directors, by a two-thirds majority, determines to be contrary to FSI’s Antitrust Compliance policy shall be subject to disciplinary measures, up to and including termination of their membership. Should a violation be brought to the Board’s attention, due process shall be granted to the affected individual(s), including written notification of the matter, an opportunity to respond to the charges and attend a hearing on the matter in person. Should the violation involve an FSI employee, sanctions, including termination, would be considered as outlined in FSI’s Employee Handbook. FSI’s President & CEO shall be responsible for implementing disciplinary actions regarding FSI staff. Should prohibited activity or discussions be found to have occurred, FSI’s General Counsel or Associate General Counsel (hereinafter referred to collectively as General Counsel) shall review the policy in a timely manner and determine if any changes or additions to the policy are necessary and if so, shall update the policy with those changes and/or additions.

 

 

Procedural Policies

To ensure FSI staff and members are aware of and follow the above antitrust policy, the following procedural policies shall be adhered to. FSI staff and members should consult with FSI’s General Counsel and/or Associate General Counsel (referred to collectively hereinafter as General Counsel) to discuss any antitrust concerns.

 

Use of Agendas and Surveys

To the extent possible, all FSI meetings shall be conducted using agendas distributed in advance. Discussions shall be limited to agenda items, unless the participants agree to an addition. FSI may also engage in benchmarking surveys of our members in response to requests from FSI’s Board of Directors, FSI Councils, individual FSI members, and FSI Task Forces or other such FSI groups. Should FSI’s General Counsel note any topics of concern in any agenda or benchmarking survey effort, the General Counsel will discuss the topic(s) with the appropriate FSI staff and/or member and ensure that the activities or discussions do not involve questionable behavior or topics.

More specific policies related are described below:

  1. Board of Directors: For Board of Directors Meetings, the agenda shall be formulated by the President & CEO prior to the meeting. The President & CEO will provide the General Counsel a copy of the agenda upon distribution to the Board of Directors. The General Counsel shall then review the agenda prior to the meeting and discuss any concerns and necessary changes to the agenda with the President & CEO prior to distribution of the agenda to the Board of Directors. Once, finalized, the President & CEO will save a copy of each finalized agenda in a file on the FSI public drive in an easily identifiable folder accessible by the General Counsel.
  2. FSI Councils: For meetings of FSI’s various Councils, the agenda shall be formulated by the relevant FSI staff liaison in conjunction with the Chair and Vice-Chair prior to the meeting. Any benchmarking surveys requested by an FSI Council shall be formulated by the Manager of Research. The FSI staff liaison will provide the General Counsel a copy of the agenda or benchmarking survey prior to distribution. The General Counsel will then review the agenda or benchmarking survey prior to distribution and discuss any concerns and necessary changes to the content with the staff liaison prior to distribution of the agenda or survey. The staff liaison will save a copy of each finalized agenda or survey in a file on the FSI Public drive in an easily identifiable folder accessible by the General Counsel.
  3. FSI Discussions: For FSI Discussion Meetings, the agenda will be formulated by the staff liaison in conjunction with the appropriate Council Chairs and Vice-Chairs prior to the discussions. The staff liaison will provide the General Counsel a copy of the discussion agendas prior to distribution to the Membership & Marketing Team and prior to the date of the discussions. The General Counsel will discuss any concerns with and necessary changes to the agenda with the staff liaison prior to distribution of the agenda to the Membership & Marketing team for printing. The staff liaison will save a copy of each agenda in a file on the FSI public drive in an easily identifiable folder accessible by the General Counsel.
  4. Other FSI Groups (Task Forces, etc.): For meetings of FSI Task Forces, Working Groups or other groups, the FSI staff member responsible for leading each group will formulate each meeting agenda or any benchmarking survey requested. The FSI Staff Member will provide a copy of the agenda or survey to the General Counsel to discuss any concerns and necessary changes. Once finalized, the FSI staff member will save a copy of the agenda in a file on the FSI public drive in an easily identifiable folder accessible to the General Counsel.

 

Responsibility of FSI Staff in the Event of a Price-Fixing Discussion

In the event any member is found to have participated in a discussion of price-fixing, FSI staff shall immediately alert the General Counsel who will determine appropriate next steps. These steps could include, but are not limited to the following:

  • Redistribution of the Anti-Trust Policy to FSI members present at the price-fixing discussion and written assurance from the members that understand and will observe the policy;
  • Termination of leadership position and/or participation on the applicable volunteer group;
  • Termination of FSI membership.

 

Distribution of Policy to FSI Staff and Members

  1. FSI Staff: The General Counsel will distribute this policy to FSI staff members on an annual basis each January prior to FSI’s OneVoice Conference. FSI staff is required to review and adhere to this policy. A copy of this policy shall be shared with each new employee along with the Employee Handbook when the individual joins FSI’s staff.
  2. FSI Board of Directors: The President & CEO will provide this policy to FSI’s Board of Directors on an annual basis each January prior to FSI’s OneVoice conference. The President & CEO will include this policy in each Board Orientation packet for new Board members.
  3. FSI Councils: The FSI staff liaison to the FSI Council will provide this policy to each member of an FSI Council on an annual basis each January prior to FSI’s OneVoice Conference. A copy of this policy will be included in the welcome materials for each new Council member upon their joining the Council.
  4. FSI Members Participating in Discussions: FSI staff shall include a copy of the most current version of the Antitrust Guidelines with each copy of the agenda provided to Discussion participants. Prior to each Discussion, the facilitator of the Discussion will alert discussion attendees of the Antitrust Policy as a preliminary matter prior to the start of the Discussion. The facilitator of the discussions, whether an FSI staff member or volunteer member, will remind attendees that the policy is in place, a copy is included in their materials, and that it is the group’s intention to follow the guidelines so that the Discussion does not involved unacceptable topics and that any such conversation will be stopped by FSI staff or the volunteer member.

 

Review of Antitrust Policy & Procedures

FSI’s General Counsel shall review this policy on an annual basis no later than December of each year and make any necessary adjustments or changes prior to distribution to FSI staff and members in January. The General Counsel will clearly mark each version with the most recent date of review, even if no changes are made from the previous version. Each annual version of the Antitrust Policy shall be kept on the public drive in an easily identifiable folder accessible by all FSI staff members. The most recent version of the policy shall also be linked to in the current version of FSI’s Employee Handbook.

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