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 and 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, workshops, meetings, forums, and other FSI-related events and activities.
Antitrust Laws & Regulations
The U.S. antitrust laws of primary concern to associations are Sections 1 and 2 of the Sherman Act and Section 5 of the Federal Trade Commission Act. 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 were taken independently for sound business reasons. Thus, the safest approach 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:
- 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;
- 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;
- Agreeing to discounts to all or certain types of customers;
- Regulating production levels or schedules concerning production facilities, capacity, or sales volume.
2. Customer or Geographic Allocation
- Restricting customer or vendor classification, allocation, or selection;
- Allocating markets, territories, customers, or control of sales or market share in general;
- 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
- Encouraging boycotts or exclusions of products or services;
- Assisting in monopolization, including limiting or excluding anyone from manufacture, sale, or practice;
- Refusing to deal with a firm because of its pricing or distribution practices;
- 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 General Counsel or Deputy General Counsel (hereinafter referred to collectively as General Counsel) and/or staff have determined violates this policy.
Pending approval of this entire Antitrust Policy by FSI’s Board of Directors, any member found to have participated in conduct that the Board of Directors, by a majority of those directors present, 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 an alleged violation by a member be brought to the Board’s attention, reasonable due process shall be granted to the affected member(s), including written notification of the matter, an opportunity to respond to the charges and attend a hearing before the Board on the matter in writing, in person or by telephone or video conference, as determined by the Board. Should the violation involve an FSI employee, disciplinary actions, up to and 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 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 approved by the Board.
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Participants in FSI meetings or activities have an obligation to terminate any discussion, seek the General Counsel’s advice, or, if necessary, terminate any meeting if the discussion might be construed to raise antitrust risks. All FSI meetings and activities are held for the purpose of transacting the appropriate business of FSI and to further its goals. All meetings and activities of FSI must be conducted in a manner consistent with this policy.