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ICSC is committed to full compliance with all applicable laws, including federal and state antitrust laws.
I. Introduction
The International Council of Shopping Centers, Inc. dba ICSC (“ICSC”) and its members are fully committed to complying with all applicable laws and regulations, including antitrust and competition laws in the United States and abroad. Compliance with antitrust and competition laws means full compliance with both the letter and the spirit of these laws and regulations. ICSC’s goal is to continue its and its members’ compliance with antitrust and competition laws and maintaining the highest standards for ethical conduct.
The purpose of this antitrust compliance policy is to provide guidance to ICSC employees and members on the applicable antitrust and competition laws and regulations and to maintain ICSC’s high standard of excellence for compliance. This policy is not exhaustive and focuses on general guidance on the antitrust laws that most often affect trade associations and members. An important term used in this guidance is competitor, which means any person or entity that (now or in the future) sells or buys the same or substitutable products or services as another (including competing for employees in the labor market). Many ICSC members may be competitors of each other. This guidance will provide you with an introductory explanation of the antitrust and competition laws and regulations and examples of how you can ensure that you and ICSC are in compliance with them.
Employees and members should contact ICSC’s General Counsel at lcampbell@icsc.com with any questions about this policy or to report any conduct that would violate this policy.
II. Overview of Antitrust Laws
A. Basic Framework
Antitrust law is governed by federal laws, such as the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and the Robinson Patman Act, as well as state and foreign laws.
The most common violations of antitrust law affecting trade associations and its members involve agreements, understandings, or joint actions among two or more companies or individuals that unreasonably restrain trade. While an agreement can be written or oral, it can also be inferred from just a “wink and a nod.” Some agreements are considered inherently anticompetitive and are subject to automatic condemnation under the antitrust laws. These agreements can be criminally prosecuted and include: agreeing on prices or discounts (or “price fixing”), agreeing on how much to bid or whether to submit a bid at all (or “bid rigging”), agreeing with competitors about whether to do business in a particular geographic area or with certain customers (or “market or customer allocation”), and agreeing to exclude, boycott, or cause significant competitive injury to third parties (or “boycotts and collective refusals to deal”).
Other agreements are evaluated under an analytical approach, which determines whether an agreement is illegal based on the agreement’s effect on competition and its justifications. These agreements include joint venture agreements and most agreements with suppliers.
B. Civil and Criminal Penalties for Violations
The antitrust laws can be enforced by the federal government (Antitrust Division of the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”)), 50 states attorneys general, private plaintiffs (individually or in class actions), and foreign jurisdictions.
The repercussions for antitrust violations for both individuals and corporations are severe, costly, and damaging to one’s reputation. The DOJ can bring serious criminal charges against both individuals and corporations, including prison sentences of up to ten years and hefty fines up to $100,000,000 for corporations and $1,000,000 for individuals for each criminal offense (or possibly higher).
In addition to criminal concerns, the government and other antitrust plaintiffs can also bring a civil suit in which the court can issue an order prohibiting an individual or corporation from engaging in certain business conduct and may require sale of a part of the business. Moreover, private individuals injured by antitrust violations can bring civil lawsuits and may be able to recover three times the damages they suffered, plus attorney’s fees and other costs.
III. Antitrust Guidance
A. Pricing and Competitively Sensitive Information
1. Price Fixing and Bid Rigging: Do not enter into agreements or a pattern of conduct with competitors to fix prices or coordinate prices (including discounts and rebates) or rig bids. These agreements are presumptively – nearly always unlawful under the antitrust laws and subject to criminal liability.
2. Information Exchange: Do not exchange competitively sensitive information with competitors without express legal approval. Competitively sensitive information includes, for example:
The concern is that exchanging competitively sensitive information with competitors can lead to the coordination of pricing or other strategic behavior, resulting in a violation of the antitrust laws. The general prohibition of the exchange of competitively sensitive information applies to all interactions with competitors, from formal meetings and conferences to informal chats and get-togethers with competitors.
Do not enter into any conversation, agreement or understanding with any other member (even indirectly through a broker or agent) concerning competitively sensitive information, including the following subjects:
However, some exchanges of competitively sensitive information may be permissible after consulting antitrust counsel. For example, communications between competitors when acting in a business collaboration, such as a merger or acquisition, may be permissible when proper safeguards have been undertaken. Additionally, data exchanges may be permissible if managed by a trade association where the data is historical (at least three months old) and aggregated with five or more contributors, where no single contributor accounts for more than 25% on a weighted basis of the data, and the data is aggregated such that it would not be possible to identify the data of any particular participant. Consult the ICSC legal department if you have a question about discussing competitively sensitive information.
B. Membership
ICSC hosts hundreds of programs a year for its members, provides members with educational courses, and opens dialogues with decision makers in the public sector. Each qualifying ICSC member has the opportunity to participate in the activities of ICSC and benefit from being a member of ICSC. Membership is open to all in the industry who meet the requirements of the different membership types. ICSC sets uniformly applied standards for all members in each membership category and does not require exclusivity to ICSC. Agreements or action to exclude or discriminate against a member without legitimate grounds may violate the antitrust laws. Any decision to deny or revoke membership must comply with ICSC Membership Terms and Conditions: https://www.icsc.com/attend-and-learn/events/icsc-terms-and-conditions-for-advertising-events-exhibit-space-and-sponsors.
C. Do Not Allocate Markets or Geographic Territories
Agreements among competitors to divide or allocate customers or geographic territories are unlawful under the antitrust laws. Conversations between members about future plans for particular real estate, in particular geographic sectors, or with regard to certain customers may be interpreted as, or lead to, an agreement on dividing or allocating customers or geographic territories. Moreover, even informal agreements between members to stay out of one another’s geographic territory can result in a criminal conviction under the antitrust laws. Thus, any such agreement or discussions related to allocating customers or geographical territories should be strictly avoided.
D. Lobbying
ICSC and its members advocate for their interests with decision makes in the public sector. All such activity should be reasonably necessary to achieve legitimate government action and not be a sham used to harm competition. Counsel should review any lobbying efforts before implementation.
E. Meetings
Meetings – informal and scheduled – occur regularly throughout the year at ICSC’s board meetings, conferences, and other activities. Careful guidelines should be applied to these meetings to ensure that improper conduct does not occur.
1. Scheduled Meetings
All scheduled meetings for ICSC and its members, such as board meetings and conferences, should have a set agenda to ensure that off-limit topics (for example, discussing competitively sensitive information) will not be discussed. ICSC’s in-house counsel should pre-approve the agendas for and attend board meetings (including the executive committee and nominating committee meetings), and detailed minutes should be taken, documenting the discussions during these meetings. The remaining meetings of the sub-committees of the executive committee should have agendas and minutes that are collected by the legal department. For ICSC conferences, the meetings and content departments should oversee the development of the agendas. If during a scheduled meeting, an inappropriate topic arises, the leader or moderator and all members should make clear that they will not discuss the topic. If discussion of an inappropriate topic continues, the leader or moderator should terminate the meeting and ensure that the minutes reflect members’ departure, discontinuance of the inappropriate discussion, and termination of the meeting. Any incident of an inappropriate topic being discussed at a meeting should be reported immediately to ICSC’s in-house counsel.
2. Informal Meetings
During ICSC board meetings and conferences, members often get together informally to network. While generally set agendas and minutes are not available for informal meetings, like with scheduled meetings, if an inappropriate topic arises, all members should make clear that they are not discussing the topic, and if the discussion of the topic continues, noticeably leave the meeting. Any incident of an inappropriate topic being discussed at a meeting should be reported immediately to ICSC’s in-house counsel.
F. Records
“Records” – from memoranda, documents, and reports to emails, text messages and audio and video recordings – should be concise, clear, and accurate. Records can be misinterpreted, and it is important to create records with the consideration that they could be produced to the government or plaintiffs’ attorneys. Care should be taken in creating written documents not to exaggerate or overstate the anticipated effect of a proposed course of action. Hyperbolic words or phrases like “dominate,” “lock out competitors,” “create barriers to entry,” “stabilize prices,” and the like should be avoided. Headings like “Please delete/destroy after reading” should also be avoided as they tend to have the opposite effect. Remember to always write carefully and accurately.
G. Report Any Suspected Violations Immediately
Any suspected antitrust violations should immediately be reported to the General Counsel of ICSC. ICSC must be able to assess and ameliorate any suspected violations as soon as possible. Many jurisdictions have leniency programs that allow companies to avoid criminal liability if they are the first to report the alleged criminal antitrust violation.
F. Disciplinary Action
Due to the substantial and serious possible repercussions for violations of the antitrust laws, any employees and/or members who are found to have violated the antitrust laws in breach of this policy may be subject to disciplinary action, up to and including termination of employment and/or membership.
III. Guidance for Board Meetings and Conferences
A. Dos and Don’ts
Do
Don’t
B. Examples
Q: Bob and Alice, both owners of shopping center real estate, are attending one of ICSC’s quarterly board meetings. During the board meeting, Bob and Alice grab coffee during a break. Bob mentions leasing prices per square foot for some of his shopping centers, which are in northern New Jersey. Alice operates in the Southwest, so Bob does not think that they are competitors. Alice is actually thinking of buying real estate in northern New Jersey. What should Bob and Alice do?
A: Neither Bob nor Alice should discuss current pricing information, which includes leasing prices, with other members regardless of whether they believe they are competitors. Even if the members are not currently competing in the same geographic area, they could be potential competitors in the future, as Alice is in this example. Alice should state that she is not discussing price information and remove herself from the conversation. Bob likewise should stop discussing pricing information and also end the conversation. Both Bob and Alice should report the conversation to ICSC’s in-house counsel.
Q: In the same example as above, Bob wants to discuss certain incentives to attract lessees with Alice. Should Bob discuss this topic with Alice?
A: No. Discussing incentives to attract lessees is akin to discussing pricing and is competitively sensitive information. Bob and Alice should not discuss these incentives.
Q: During one of ICSC’s quarterly board meetings, Steve, Karen, and Candice, all owners of shopping center real estate, are chatting during a break. Karen thinks it would be helpful if all three would casually agree to not own real estate in any county where another already owns a shopping center. Should Karen bring up this topic in conversation?
A: No. This would be agreeing to allocate territories and could lead to an antitrust violation. Karen should not discuss this topic even informally or casually.
Q: At RECon, a group of retailers meet informally for drinks. What steps should they take to ensure that competitively sensitive information is not discussed?
A: The retailers should refrain from discussing topics related to the competitively sensitive information noted in this policy, such as how much they would be willing to pay for leases at shopping centers in the same area. If any competitively sensitive information or topics arise during the meeting, the retailers should make clear that they are not going to continue discussing these topics, and if this discussion continues, noticeably leave the venue. Any inappropriate topics should be immediately reported to ICSC’s in-house counsel.
Q: During a board meeting, members want to discuss the impact of opening a physical store on web traffic and how this affects shopping center real estate. Is this a permissible topic to discuss?
A: Yes, this topic would be permissible. When discussing the topic, members should make sure not to share competitively sensitive information such as current, non-public pricing for shopping center real estate or discuss specific locations or opportunities.
Q: Board members Joe, Jenna, Kevin, Tyler, and Laura do not like Sharleen, who wants to be a member of ICSC. Sharleen meets all the requirements for membership and is ready to pay the fees. Should the board members take action to prevent Sharleen from becoming an ICSC member?
A: No. Membership availability and rules must be applied uniformly to all members. Provided Sharleen qualifies for membership and will pay the membership fee, she should be allowed to be a member of ICSC.
Modified September, 2021