Antitrust Compliance Policy

Antitrust Reminder Statement

Members of Independent Community Bankers of America (“ICBA”) and all participants in ICBA programs and activities must take care to abide by federal and state antitrust laws, and ICBA’s Antitrust Compliance Policy and Guidelines. As a reminder, ICBA meeting and program participants should not discuss the topics identified in the Antitrust Compliance Policy and Guidelines, including pricing, profitability, payment terms, and allocating markets or customers.

It is the policy of the Independent Community Bankers of America (“ICBA”) to fully comply with the federal and state antitrust laws.

This document establishes a mandatory Antitrust Compliance Policy and Guidelines to assist ICBA and its members and participants in conducting ICBA meetings and programs, including any on-line peer-to-peer discussion boards, within the limits established by the applicable antitrust laws.

ICBA may be held liable for your activities at an ICBA meeting, discussion forum or other ICBA program. In addition, actions by a ICBA member or officer that an outsider could reasonably assume were authorized by ICBA may be interpreted by the courts to be an act of ICBA, and therefore for which ICBA bears legal responsibility.

Overview of the Antitrust Laws

Associations by their very nature present potential antitrust issues. One reason is that in bringing competitors together into an association, there exists the means by which collusive action can be taken in violation of the antitrust laws. In addition, many of an association’s valuable programs could deal with subjects that are sensitive from an antitrust standpoint – statistical reporting, sharing of competitively-sensitive data, and standards and certification programs.

Under the U.S. antitrust laws, certain kinds of conduct are exclusively presumed to be unreasonable and therefore unlawful. Such conduct, which is considered to be unlawful per se, consists of certain practices which clearly restrain competition and have no other redeeming benefits. Examples of such practices include:

1. agreements to establish price (price fixing);

2. agreements to refuse to deal with third parties (boycotts);

3. agreements to allocate customers or markets;

4. tie-in sales which require the customer to buy an unwanted item in order to buy the product desired.

ICBA participants should refrain from any discussion which could provide the basis for an inference that the participants agreed to take any action that might restrain trade. An “agreement” among association participants in antitrust terms is a very broad concept – it may be oral or written, formal or informal, expressed or implied. A “handshake” to “hold the line” on prices is more than sufficient to evidence an unlawful conspiracy to fix prices.

The basic principle to be followed in avoiding antitrust violations in connection with association activity is to see that no illegal agreements, expressed or implied, are reached or carried out through the association. Members and participants should also avoid engaging in conduct which may give the appearance of an unlawful agreement.

There are both civil and criminal penalties for violating the antitrust laws. The penalties for violating the antitrust laws are severe. In addition to government enforcement of the antitrust laws, an individual or company that suffers injury as a result of an antitrust violation may file a private suit against the violator and recover treble damages. Therefore, the association’s antitrust liability does not lay solely at the hands of government enforcement agencies.

Antitrust Compliance Guidelines

The following are guidelines which can minimize the possibility that inferences of antitrust guilt can be drawn from ICBA meetings:

1. Meetings should be held only when there are proper items of substance to be discussed which justify a meeting.

2. In advance of every meeting, a notice of meeting along with an agenda should be sent to each member of the group; the agenda should be specific and broad topics should be avoided.

3. This Antitrust Reminder Statement should be reviewed at each meeting and a copy should be included in the meeting materials.

4. Participants at the meeting should adhere strictly to the agenda. In general, subjects not included on the agenda should not be considered at the meeting.

5. If a member brings up for discussion at a meeting a subject of doubtful legality, they should be told immediately the subject is not a proper one for discussion. Should the discussion continue, despite protest, it is advisable that members leave the meeting.

6. Minutes of all meetings should be kept by ICBA, and they must accurately report what actions, if any, were taken.

7. Secret or “rump” meetings held at the time of the regular meeting should be strictly avoided.

8. DO NOTS. Please do not make any statement or take any action which may give the appearance of an unlawful agreement or could provide the basis for an inference that ICBA agreed to take any action that might unreasonably restrain trade. More specifically, the following topics are some of the main ones which should NOT be discussed at meetings of ICBA or by participants in other ICBA programs or forums:

   1. Do not discuss current or future prices

   2. Do not discuss what is a fair profit level

   3. Do not discuss price adjustments

   4. Do not discuss cash discounts

   5. Do not discuss credit terms

   6. Do not discuss allocating markets or customers

   7. Do not discuss wage rates

   8. Do not discuss refusing to deal with a corporation

   9. Do not discuss changes in industry production, capacity, or inventories

   10. Do not disparage other companies or their products or services

   11. Do not discuss action to refuse to deal with certain suppliers, customers, or other competitors, or to undertake actions that tend to exclude certain participants from the marketplace or deny them access to a significant competitive benefit available to others in the market

9. DOS. The following topics are some of the permissible ones which may be discussed at meetings of ICBA members or by participants in other ICBA programs or forums:

   1. You may discuss reporting and exchanging information on general industry or professional developments, concerns and economic trends

   2. You may discuss markets for the industry/profession as a whole

   3. You may discuss advances/problems in relevant research and technology

   4. You may discuss general information to assist in identifying methods by which an individual or company can improve performance (e.g. efficiencies and management)

   5. You may discuss how common advocacy strategies and positions with respect to legislative and regulatory matters

10. Other areas of activity which should be carefully scrutinized from an antitrust standpoint are the following:

    1. Denial of association membership to an applicant

    2. Expulsion of an association member

    3. Membership qualifications

    4. Conduct of a statistical reporting or data sharing program

    5. Conduct of a standardization or certification program

    6. Denial of association services to non-members