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Confidential

American Investment Council

ANTITRUST GUIDELINES

The AIC, its staff and its Members must exercise diligence to ensure that their activities are conducted within the parameters established by the antitrust laws, both as a matter of appearance and in actual fact. The following guidelines are designed to assist the AIC and its Members in guiding their conduct at AIC meetings or in connection with related activities. These guidelines should be made available to, and followed by, all persons who participate in the AIC’s activities.

Practices to be Adopted

  • Articulate and adopt a concise statement of the status and mission of the AIC.
  • Prepare an agenda for each meeting, have the agenda approved by counsel, and distribute it to all participants prior to each meeting.
  • To the extent possible, limit discussion at each meeting to the agenda items and only deviate from it with the approval of the Chair of the meeting.
  • Have minutes taken of each meeting of the AIC that accurately reflect what transpired, have the minutes reviewed by counsel, and promptly distribute the minutes to all participants. Do not maintain unofficial minutes of meetings.
  • Have counsel present at any meeting or discussion in which matters bearing on competitive relations between or among participants, or other sensitive information, may be discussed.
  • Confine discussion of AIC matters to the formal meeting rather than engaging in rump or splinter sessions before or after scheduled meetings.
  • When creating a committee, describe in the minutes its purpose, authority and relation to the AIC, and follow these guidelines with respect to the meetings conducted by the committee.
  • If indispensable to the AIC’s activities, confidential business data should be submitted through and compiled by a third party without providing the identity of the firm(s) supplying the information to any other AIC Member.
  • Proposed lobbying activity that could be considered to have anticompetitive effects should be cleared in advance with counsel.
  • Advise the Chair or counsel of any development that may raise questions under these guidelines.

Conduct to be Avoided

The matters identified below should not be discussed or the subject of informational exchanges at any meeting or other gathering incidental to a meeting:

  • Specific internal pricing or proprietary product valuation methodologies;
  • Specific internal terms and conditions of dealing (e.g., credit policies or collateral requirements);
  • Specific internal levels or standards of capitalization;
  • Specific internal hedging or risk management practices, parameters or policies or other cost structure elements;
  • Specific internal portfolio composition;
  • Specific internal sales or marketing policies, practices, procedures or standards;
  • Specific internal proposals for particular transactions with clients or general bidding strategies;
  • Specific internal proposals for product design or marketing plans.

The foregoing topics have been selected in light of the nature of the AIC’s primary agenda. AIC, its staff and its Members should be aware that other subjects (such as agreements respecting territories, product categories, customers or non-member competitors), not identified above, could also raise antitrust concerns.

Documentation

Documents are often the most important evidence in an antitrust investigation or litigation. This includes documents in hard copy as well as electronic documents such as e-mail and drafts that might be saved on servers, hard drives, or other electronic media. The government and private litigants have the ability to obtain broad categories of documents, including documents discussing pricing, markets, customers, business plans, contacts with competitors and other matters that might have a bearing on antitrust issues. Further information regarding the appropriate use of informational surveys and the requirements for conducting such surveys should be obtained and reviewed by the AIC before any such surveys are conducted. Requests for such information can be directed at the AIC, its staff and at each of the Members. Thus, it is extremely important that Members and staff exercise care in the documents they create to avoid any misunderstanding that later might be used against the AIC. Precautions that should be taken include the following:

  • Treat every document you create as if it will be read by a government attorney or an opposing attorney in litigation.
  • Treat e-mail and other electronic documents the same as hard copy documents. Assume that electronic versions of documents will remain on the system indefinitely and will be available to the other side in any future case.
  • Do not use language in documents that might be mischaracterized later (for example, “there appears to be an industry consensus on price” or “we will be the only game in town”).
  • Do not use other phrases that might be considered provocative or relevant to an antitrust claim (for example, “market power”, “dominant position”, “joint control of the market”, “choke off the competition”).
  • Avoid analyzing “market shares.” The definition of a relevant market for antitrust purposes is complex and often different from the definition used in a business context. When documents are created that attempt to set forth “market shares,” they can be difficult to counteract later.
  • Ask counsel to review important documents that might have antitrust significance.

Adopted: January 15, 2007
Revised: August 30, 2010
Revised: June 1, 2016