Author: Molly Donovan
Every spring, the Trooper Girls sell cookies in their town. Although they’re all members of the same group, the girls compete against each other to be the top cookie seller of the season. The girls hold regular meetings with rules set by the troop leader based on an antitrust course she took in law school:
- Discussions should stay focused on personal safety guidelines for selling cookies, and how cookie sales are going generally.
- No agreements to fix cookie prices—each girl is supposed to price her own cookies individually. That’s part of the fun of competing.
- No agreements to divide markets—deals along the lines of “you take this street and I’ll take that street” are prohibited. Members should vigorously compete in all relevant locations.
- Any applicant under the age of 15 can be a member of Trooper Girls upon completing the online forms and having them signed by a parent or guardian.
[“I like these rules,” thinks the antitrust lawyer. The membership criteria are clear and can be fairly and objectively applied, and the meeting discussions seem appropriately restricted to legitimate subjects]
At the first meeting of cookie-selling season, the Trooper Girls were in distress. Practically no cookies had been sold because, unforeseeably, the Ranger Boys had started selling ice cream—a treat much more popular than cookies of late given the unseasonably warm weather.
The de facto ringleader of Trooper Girls—Tina—announced at the meeting, “We all know cookie sales aren’t going well and we all know why. We need to get on the same page, and reconsider cookie prices until the weather returns to normal and this crisis is over.”
The troop leader interrupted, “Tina, I think that’s enough on that. Let’s change the subject.”
[“Uh oh,” thinks the antitrust lawyer. Tina’s comments sound like an invitation to collude. I’m glad the troop leader spoke up, but the damage may be done.]
Tina winked at her Trooper Girl friends and they all basically knew what to do. Meanwhile, the specifics were worked out in whispers during social time after the meeting, and during one-on-one phone calls and text exchanges. Of course, nobody said exactly what price to charge and nobody wrote down any sort of formal agreement—the rules clearly don’t allow that. Instead, the discussions were more along the lines of “let’s think about a 10%-20% discount,” which can’t constitute an “agreement,” right? Specific prices weren’t even discussed.
[“Wrong,” says the antitrust lawyer. “Agreements” don’t have to be explicit at all. A wink and a nod could suffice. Similarly, specific prices need not be discussed—agreements about the general direction of pricing could raise antitrust scrutiny.]
The next day, each member of Trooper Girls cut their cookie prices, all in the 10-20% range, though some a little bit more and some a little bit less.
Suddenly, the weather cooled again and cookie sales took off. The Ranger Boys went out of business completely, unable to compete with the reduced price of the Trooper Girl treats.
Immediately thereafter, the Trooper Girls communicated to one another—in various ways—that it was no longer necessary to keep prices low, each member could do as she pleased, though continued cooperation to return to normal prices was appropriate.
And that’s what happened.
[“Oh no, again.” This could be deemed another anticompetitive agreement, now with indefinite and potentially long-running effects.]
Rick, a member of the Ranger Boys was very sad. For one thing, he was left with a freezer full of ice cream—couldn’t give the stuff away. For another, he had nothing to do on weekends with the Ranger Boys now essentially defunct.
Wisely, Rick did two things. He called an antitrust lawyer, suspicious that something unfair had occurred. And he petitioned the Trooper Girls to join their group.
Although the girls initially refused the application, the antitrust lawyer changed Rick’s life (as antitrust lawyers do) by threatening to sue the Trooper Girls and their individual members for violating the Sherman Act, including by refusing Rick’s application for anticompetitive reasons contrary to the membership criteria.
The Trooper Girls relented—paid Rick not to sue and admitted him in the group. Rick used the settlement money to start his own business making ice cream sandwiches. He used the ice cream leftover in his freezer and Trooper Girl cookies for the sandwich ends (genius!). In the process, Rick sold a lot of ice cream and a lot of cookies—everyone was happy.
THE MORALS OF THE STORY:
*For the Trooper Girl Types and Their Associations: In addition to having clear membership criteria, have a written antitrust compliance policy and train all members to issue spot.
Discussions about not competing—including as to each other’s employees—shouldn’t take place.
Exchanging information about pricing—including employment compensation—is very risky even if specific prices aren’t discussed.
The rules about what discussions are and are not allowed equally apply both inside and outside of meetings.
Check DOJ guidance on aggregating data for sharing.
Never retaliate against a member who reports a potential violation. Encourage reporting and have a mechanism for submitting reports anonymously.
*For the Rick Types: If an entire industry appears to be aligned, is behaving in parallel and causes you harm, investigate the possibility of an antitrust claim. Viable antitrust claims can be powerful swords in business negotiations.