Member Surveys: Beware of Antitrust Pitfalls

William E. Berlin
202-326-5011
weberlin@ober.com

Many nonprofit organizations, particularly professional and trade associations, conduct surveys of their members. Surveys disclosing prices, pricing formulas, or wages paid to employees can raise antitrust issues and pose the risk of antitrust liability for both the association sponsoring the survey and its participating members, if those members are competitors of each other.

Organizations and their members should be careful to avoid participating in surveys concerning current or future charges or payments for services. This is particularly true if the survey relates to a current or future price charged by identified competitors. In fact, organizations should obtain the advice of antitrust counsel before conducting surveys of even historical prices. Surveys of current or future prices among competitors may facilitate a per se (i.e., presumptive) unlawful price-fixing agreement or group boycott among the participants. Even if no actual price-fixing agreement results, exchanges of competitively sensitive information among competitors still can be unlawful if their effect is to raise or stabilize prices.

Fortunately for nonprofit organizations the guidelines and conditions for lawfully conducting surveys are relatively clear. The Justice Department and Federal Trade Commission have identified an antitrust safety zone if:

the survey or exchange is implemented by a third-party;
the statistics disseminated are based on data that is at least three months old; and
the statistics disseminated are sufficiently aggregated or masked so that recipients of the information cannot identify the prices or costs of individual providers participating in the survey.

Surveys not meeting these guidelines may still be lawful depending on other factors. While nonprofit organizations need to exercise caution when conducting surveys, they should not abandon the service. Surveys can be a valuable tool for a nonprofit's membership and practical guidelines are available for helping nonprofits conduct effective and lawful surveys.