1.0 Basic Antitrust Principles
1.1 Statutory Overview
Interactive Advertising Bureau, Inc. (“Corporation” or “IAB”) IAB brings significant pro-competitive benefits to participants in the online advertising industry. It must not, however, be a vehicle for firms to engage in anticompetitive conduct that violates the antitrust laws. The principal antitrust and competition laws are the Sherman Act, the Clayton Act, the Federal Trade Commission Act and state antitrust laws.
- The Sherman Act in broad terms prohibits “every contract, combination . . . or conspiracy” in restraint of trade, as well as monopolizing, attempting to monopolize, or conspiring to monopolize any part of trade or commerce.
- The Clayton Act prohibits exclusive dealing and “tying” arrangements, as well as corporate mergers or acquisitions which may tend substantially to lessen competition.
- The Federal Trade Commission Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices” in or affecting commerce.
- Violations of the antitrust laws can result in civil and criminal penalties for the Corporation, members, working group participants and their employees.
1.2 “Hard Core” Offenses
Certain antitrust violations are referred to as “hard core” or “per se” offenses. Conduct that falls within this category is automatically presumed to be illegal by the courts, and the absence of any actual harm to competition will not be a defense. Conspiracies falling within the hard core category are likely to be prosecuted as criminal offenses, and include the following:
- Price-fixing agreements: Agreements or understandings among competitors (or potential competitors) directly or indirectly to fix, alter, peg, stabilize, standardize, or otherwise regulate the prices paid by customers are automatically illegal under the Sherman Act (“illegal per se”). An agreement among buyers fixing the price they will pay for a product or service is likewise unlawful. “Price” is defined broadly to include all price-related terms, including discounts, rebates, commissions, and credit terms. Agreements among competitors to fix, restrict, or limit the amount of product that is produced, sold or purchased, or the amount or type of services provided, may be treated the same as price-fixing agreements.
- Bid-rigging agreements: Agreements or understandings among competitors (or potential competitors) on any method by which prices or bids will be determined, submitted, or awarded are per se illegal. This includes rotating bids, agreements regarding who will bid or not bid, agreements establishing who will bid to particular customers, agreements establishing who will bid on specific assets or contracts, agreements regarding who will bid high and who will bid low, agreements that establish the prices firms will bid, and exchanging or advance signaling of the prices or other terms of bids.
- Market or customer allocation agreements: Agreements or understandings among competitors (or potential competitors) to allocate or divide markets, territories, or customers are always illegal.
1.3 Other Activities
There are other activities that, though typically not subject to criminal prosecution, are nevertheless sensitive and may lead to investigations or litigation.
- Group boycotts or “Concerted Refusals to Deal”: Per se condemnation typically applies where there are joint efforts by firms with market power to boycott suppliers or customers in order to discourage them from doing business with a competitor. Other concerted refusals to deal can be unlawful depending on the economic effects of the conduct.
- Exclusionary standard setting, certification or code of ethics: Trade association standards-development, certification programs, and codes of ethics generally are pro-competitive and lawful. Such activities may be found unlawful, however, if they have the effect of fixing prices, result in an unlawful group boycott or unreasonably exclude others from the market.
- Vertical agreements concerning price: Agreements between suppliers and resellers that establish minimum resale prices is per se unlawful under certain state antitrust statutes and, depending on the economic effect, may be unlawful under federal antitrust law.
- Tie-in sales: A supplier conditioning the sale of one product on the customer purchasing a second product may be unlawful.
- Exclusionary membership criteria: Membership criteria with the intent or effect of excluding and disadvantaging others is a red flag for careful legal review.
2.0 IAB Policy
2.1 Compliance With All Applicable Antitrust Laws
It is the policy of IAB to comply with all federal and state antitrust laws, as well as similar foreign competition laws to the extent they apply. It is expected that all Corporation staff, company member representatives and working group participants will comply with all applicable antitrust laws.
To avoid the appearance of impropriety, IAB and its members, working group participants and their respective employees (where such employees are involved in IAB activities) (collectively, “Constituents”), must abide by the provisions set forth in Sections 2.1-2.3. & 3.0. A Constituent’s compliance, or failure thereof, with the policies stated in Sections 2.1-2.3. & 3.0. does not give rise to any inference, whether positive or negative, regarding that Constituent’s compliance with applicable antitrust laws.
2.2 Meetings & Conference Calls and Other Corporation Functions
Meetings and conference calls conducted by IAB and its Constituents will be conducted according to the following procedures:
- This Statement of Antitrust Principles and Compliance Policy (the “Policy”) will be distributed to Constituents.
- Agendas will be distributed in advance of meeting, where feasible.
- Unless otherwise advised by IAB’s legal counsel, off-limit topics at meetings, conference calls and formal and informal social functions include:
- prices, pricing methods, or terms or conditions of sale;
- pricing practices or strategies, including methods, timing, or implementation of price changes;
- discounts, rebates, service charges, or other terms and conditions of purchase and sale;
- price advertising;
- costs, profits and profit margins;
- specific customers of the Constituent or of any other company;
- business plans of the Constituent or of any other company;
- whether to do business with certain suppliers, customers, or competitors;
- complaints about the business practices of individual firms;
- the validity of any patent or the terms of a patent license;
- confidential company plans regarding future product or service offerings; and
- any ongoing litigation.
2.3 Standards, Certification, and Codes of Ethics
Any standard, certification, or code of ethics activity of the Corporation will be conducted in accordance with the following basic rules, which the Corporation and its Constituents will work in a manner to ensure that:
- Participation in the creation of a standard, certification program, or code of ethics is voluntary and open on reasonable terms to all persons who are directly and materially affected.
- Timely notice of standards-setting, certification or code of ethics activities is provided to all parties known to be directly and materially affected.
- All views, including any objections expressed by any Constituent, will receive fair and equitable consideration such that no industry segment, interest group, or company dominates the process.
- Any development of standards or certification criteria will be subject to written procedures promulgated by IAB.
2.4 Training
All staff members of IAB will receive a copy of this Policy and be given an opportunity to ask questions. In addition, officers and staff members will attend an orientation session presented by the Corporation’s counsel on this Policy.
IAB staff members will send member companies and working group participants a copy of this Policy, which shall also be available on IAB’s website.
3.0 Complaint Investigation and Internal Enforcement
Reports of noncompliance or other complaints should be quickly sent to the working group leads. If there is reason to believe that the Policy has been violated, an investigation will be promptly directed by the General Counsel.
Constituents that violate or otherwise fail to comply with the provisions of the Policy set forth in Sections 2.1.-2.3. & 3.0. will receive a letter from IAB’s counsel in each instance of a violation. Such violation may result in consequences, including but not limited to termination.