Antitrust Compliance Discussion Guidelines

The antitrust laws aim to protect the public from agreements between competitors that affect the price or distribution of products while promoting fair and vigorous competition in the marketplace. As competitors in the market you will always act in your individual, competitive best interests. When competitors gather at meetings like this, 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, and division of markets between competitors.

There is a limited exemption from the antitrust laws because of the McCarran-Ferguson Act, but that limited exemption does not apply to meetings of this type. 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 – 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 pricing or marketing of insurance products.

Please give very careful consideration to the possible antitrust implications of what you say and do during this meeting. Avoid any discussion of prices, market allocation, product restrictions or any conduct that could be construed as boycott. Discussions of those kinds of topics may be held to be per se illegal, which means that intent is irrelevant (a plaintiff or prosecutor need not prove you intended to violate the antitrust laws or to affect competition). Other commercial activities between competitors may also be violations of antitrust laws if they constitute an unreasonable restraint of trade.

It is of course always permissible to discuss matters that 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 between competitors.

Please stay within the formal agenda while attending this Gen Re event, 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 between competitors.)