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People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.
-Adam Smith
THE WEALTH OF NATIONS (1776)
I.
INTRODUCTION
From its very inception, this country has been dedicated to the principles of capitalism and the free market economy. And undoubtedly, one of the cornerstones of these principles is open competition in the marketplace. We as a nation are so concerned about the ability of market competitors to take advantage of free and open competition that for more than 100 years the executive, legislative and judicial branches of government have used their constitutional powers to protect and advance free competition and to regulate those business activities viewed as having harmful market effects.1
There is, as a general rule, nothing worrisome or sinister about members of the same trade meeting to discuss mutually beneficial interests. Indeed, trade meetings can allow members to, among other things, disseminate trade information, encourage product standardization through the promulgation of industry standards, and regulate and police the actions of trade members. However, trade meetings, since they attract competitors within a particular industry, can also, absent proper guidance, serve as the catalyst - intentionally or unintentionally - for numerous antitrust violations. The purpose of this article is to apprise those who wish to meet as a group of what generally can and cannot be discussed in accordance with the applicable antitrust laws.
II.
THE RELEVANT FEDERAL ANTITRUST LAWS
A. The Sherman Antitrust Act
The Sherman Antitrust Act,2 the very first federal antitrust statute, was passed in 1890 in order to promote full and fair competition in the interstate and overseas commerce of the United States.3 Various analysts have categorized the Sherman Act as a natural outgrowth of common law concerns with restraint of trade;4 as a political response to the Populist and other agrarian political forces of the late Nineteenth Century;5 as an effort to protect small businesses from rampant monopolization;6 and, as an attempt to maximize consumer welfare.7 No matter what the reason for its enactment, one thing is certain: the Act was given a broad, conceptual wording. As a result, courts and legislators have been able to fashion multitudinous remedies...