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Antitrust Disclaimer

Adam Smith wrote in his seminal work The Wealth of Nations that “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.”  Put simply, Adam Smith was pointing to the possibility of anticompetitive policies and behaviors arising from gatherings of competitors in an industry.  Such concerns gave rise to the antitrust laws of nations across the globe, including those of the United States.

As an industry trade association operating within the U.S., the activities of The Art Fund Association (“Art FA”) are subject to the antitrust laws of the United States and scrutiny by the Antitrust Division of the Department of Justice and the Federal Trade Commission.  While such government agencies have expressed their general support for the benefits provided by trade associations, such as fostering best practices of ethical conduct and educating the association’s members and the general public about the relevant industry, they continue to stress the potential for such industry gatherings to disseminate competitively sensitive information that can have the effect of fixing prices and/or restraining trade to the detriment of the general public. 

Accordingly, Art FA is committed to ensuring compliance with the antitrust laws of the U.S. and any other jurisdiction in which it operates.  Art FA also requires that its members and other participating persons individually comply with such laws.     

As one can imagine, the regulatory framework governing antitrust policy in the U.S. is incredibly complex.  A famous journalist, Isabel Paterson (1886-1961), once wrote that “as freak legislation, the antitrust laws stand alone. Nobody knows what it is they forbid.”  While it impossible to summarize the entirety of U.S. antitrust regulations herein, we note the following general principles that Art FA’s members are required to adhere to in connection with their participation in Art FA’s activities.

• Antitrust laws prohibit “agreements” between industry competitors that unreasonably restrain trade. Some agreements are per se illegal, such as price fixing (e.g., agreements on management fees and performance fees to be charged to fund investors by competing art funds), dividing up markets (e.g., fund managers agreeing not to start art funds competing in the same type of fine art) and joint refusals to deal with service providers (e.g., art fund managers agreeing not to utilize the services of a particular art advisor unless such advisor agrees not to continue advising another art fund). Art FA members are prohibited from entering into any “agreements” that constitute per se violations of antitrust laws.
• Other “agreements” are analyzed under the “rule of reason”, which involves a kind of cost-benefit analysis of the effects of an association’s collaborative and cooperative effects. As a trade association, Art FA benefits from the government’s general support for such groups. However, such support will not protect Art FA or its members from agreements made that will have the effect of adversely affecting prices, limiting consumer choices and unfairly impacting the playing field for certain art fund participants.
• “Agreements” between competitors that have unreasonable anticompetitive effects can be inferred by the conduct of the competitors themselves even if such agreement is never reduced to a written instrument. To this end, appearances are important and participants in Art FA events, conferences and networking forums should be mindful of behaviors that create even the appearance of impropriety or the potential for collusion.
• Avoid exchanges of competitively sensitive information that can be used by antitrust regulators to infer an agreement to unreasonably restrain trade.
• Avoid conduct that some Art FA members could perceive as exclusionary and undertaken for the purpose of providing a select group of members with competitive advantages.
• If one has any questions as to the propriety of one’s discussions with other Art FA members or event participants, please contact the President or General Counsel of Art FA or send us an e-mail at legal@artfundassociation.com.