Know where you stand with antitrust laws

Know where you stand with antitrust laws

Whether doing business or simply talking shop, it's important for doctors to understand that their dealings are subject to antitrust laws, regardless of the setting.

"If you think a conversation is headed to any of these sensitive areas, cut it off."

Just as in the case of other professionals or businesses who are competitors, optometrists cannot take part in any activity held under the law to be inherently anticompetitive, says AOA General Counsel Michael Stokes, J.D.

Despite optometry's collegial bonds, doctors not affiliated with the same practice can be considered competitors in the eyes of the Federal Trade Commission (FTC) and other federal and state antitrust enforcers. Any agreements—formal or informal—between competitors on matters affecting fees or market share, whether and on what terms to do business with any company or entity, and other areas involving competition are prohibited by the antitrust laws. Such agreements may be facilitated by communication in both formal and informal settings, including conversations, letters, and electronic and social media.

A good rule of thumb to follow: individual ODs and practices may make business decisions they feel are appropriate to their own practice, however, a group of ODs who are not in practice together cannot make such decisions jointly.

"Like every other trade or professional association, the AOA has an antitrust compliance policy, including a prohibition on discussions of fees and dealings with suppliers at its meetings," Stokes says. "Individuals should follow these same guidelines any time two or more professionals get together in any setting."

3 discussions with repercussions
Optometrists should be wary of conversations that might be misconstrued. Below are examples of three types of conversations among competitors that should be avoided in order to protect against accusations of potential antitrust violations, according to the AOA Antitrust Compliance Policy.

  1. Talking about prices. Doctors, and their practice associates, can make decisions about prices and fees in their practice, but should avoid discussing these topics with other doctors. Antitrust laws prohibit agreements with competitors on fees or prices to be charged to customers. The courts have interpreted the concept of an agreement very broadly and have not limited it to a formal understanding like a contract or written plan.

  2. Talking about customer or market allocation. The same broad rules that apply to discussions of price information apply here. There must be no agreements or discussions with competitors about who will sell to which customers, about the geographic territory that each competitor will cover, or about a willingness to use less than best efforts with some customers or territories.

  3. Talking about refusals to deal. Whether an optometrist decides to provide services to a particular patient or receive products or services from a particular supplier or provider must be the unilateral decision of that optometrist and not the result of conversations with or among competitors. In addition, an agreement among competitors to not do business with a particular company may be deemed an illegal boycott, especially if the collaborating competitors have market power.

Note: There does remain an exception for lobbying activities. The Noerr-Pennington doctrine, which protects the right to petition the government under the First Amendment, acts to shield lobbying activity from antitrust liability, even when the outcome of the activity might be to reduce competition or harm a competitor.

The above examples are meant to serve as a general reminder about potentially problematic speech and activities. If a situation arises in which an individual has concerns about the antitrust implications of any proposed course of action, he or she should contact legal counsel for guidance.

As Vicki Smith, a partner with Stinson Leonard Street LLP who specializes in antitrust litigation, reminds us: "Because the penalties for violating the antitrust laws can be severe, and because even defending against the accusation of a violation can be costly, the best course of action is to avoid any conversations that might be misconstrued. If you think a conversation is headed to any of these sensitive areas, cut it off."

Click here
to read four things AOA and affiliate optometric associations can and cannot do under antitrust laws.

April 7, 2015

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