Hoosier Banker 8LI -RHMERE Antitrust Act Preventing ‘combinations in restraint of trade’ &VIXX . %WLXSR Partner Krieg DeVault LLP bashton@kdlegal.com Krieg DeVault LLP is a Diamond Associate Member of the Indiana Bankers Association. COMPLIANCE CONNECTION QYIWXMSR 1] FERO MW GSRWMHIVMRK E RI[ WIVZMGI JII SR SYV HIQERH HITSWMX EGGSYRXW -X [SYPH FI LIPTJYP XS ORS[ [LEX SYV GSQTIXMXSVW MR OI] QEVOIXW EVI GLEVKMRK WS [I GER GLEVKI XLI WEQI EQSYRX -W MX EPPS[IH YRHIV -RHMERE PE[ XS EWO JSV XLEX X]TI SJ MRJSVQEXMSR JVSQ SXLIV FEROIVW# Answer: No! Indiana law, in addition to various federal laws,1 not only prohibits the practice you are contemplating, but additionally imposes significant civil and criminal sanctions against violators. The inquiry scenario you reference is an example of price fixing – a clear violation of the Indiana Code with respect to “combinations in restraint of trade.”2 The Indiana Antitrust Act provides, in part: “Every scheme, contract, or combination in restraint of trade or commerce, or to create or carry out restrictions in trade or commerce, or to deny or refuse to any person participation, on equal terms with others … or increase or reduce the price of merchandise or any commodity … within or without this state, is illegal. … A person who makes such a contract, engages in such a combination, or enters into such a scheme, or does within this state any act in furtherance of such a contract, combination, or scheme entered into without this state, commits a Class A misdemeanor.3” Meetings and online forums are especially dangerous when it comes to antitrust violations. During online exchanges of information, not only would you have poThis information is provided for general education purposes and is not MRXIRHIH XS FI PIKEP EHZMGI 4PIEWI GSRWYPX PIKEP GSYRWIP JSV WTIGMƤG guidance as to how this information applies to your institution’s circumstances or situation. 1 See 15 U.S.C.S. §1 (Sherman Antitrust Act); 15 U.S.C.S. §§ 12-27 (Clayton Act); 15 U.S.C.A. §§41-58 (FTC Act). 2 I.C. § 24-1 I.C. § 24-1-2-1 tential liability for antitrust violations, but every person copied in such communication could be viewed as a co-conspirator in an alleged scheme to increase prices. The Indiana Antitrust Act does provide, however: “It is a defense to any action growing out of any violation of any law relating to the subject-matter of this chapter for the defendant to prove that the violation is not in restraint of trade or commerce, or does not … increase or reduce the price of merchandise or any commodity.” The Act contains similar restrictions (and penalties) against collusion to limit: market access to competitors; coordinated entrance or exit from markets; or agreements between competitors to divide a market. Antitrust issues should be addressed using the “see something, say something” rule. If you are copied on any communication from another financial institution (or engaged in an in-person discussion) that involves pricing, market participation or a decision to offer/not offer a certain product, you should: immediately end the communication; notify your bank counsel; and advise whoever initiated the communication to refrain from communicating on issues related to these matters in the future. HB
RkJQdWJsaXNoZXIy MTg3NDExNQ==