信息交换的反托拉斯风险

1THE ANTITRUST RISKS OF INFORMATION SHARING信息交换的反托拉斯风险Corby C. Anderson and Ted P. Pearce23 Franchise L.J. 17Copyright (c) 2003 American Bar AssociationFranchise Law Journal Summer, 2003TEXT:*17 Competitors in franchising routinely exchange ideas and information through buying cooperatives and trade associations, at franchise advertising meetings and conventions, and elsewhere. These information exchanges strengthen franchise networks and afford additional tools to make participants more competitive. These exchanges benefit consumers as well, enabling franchise systems to reduce prices, improve quality, and market new products and services more quickly.Nevertheless, although information sharing makes franchise systems more competitive, it also raises serious antitrust concerns. Information exchanges can make it easier for franchising competitors to coordinate pricing and other decisions about their products and services. However, this coordination can have anticompetitive effects. In todays franchising landscape, particularly with complementary franchise systems housed under the same corporate roof selling competing products and services, the potential for such information exchanges to run afoul of the Sherman Act is great. For example, with little though of antitrust implications, companies that engage in dual distribution and that operate multiple, competitive franchise systems may well share information about the cost-effectiveness of employees or the availability 2of buying efficiencies among different franchise systems. Franchisee competitors may engage in regular exchanges of information about pricing; such exchanges have the effect of stabilizing prices within their market, an antitrust violation even without any “formal“ agreement about pricing.This article examines how franchisors and franchisees can avoid antitrust-related risks in information sharing. It defines information sharing, explores its benefits, examines how courts have treated the practice, looks at guidelines and antitrust “safety zones“ established by federal regulators, and suggests precautions that competitors can take when they share information.What Is Information Sharing?Information sharing consists of exchanging various types of communications, most often among competitors, but sometimes among parties that are not direct competitors, such as groups of franchisees within a franchise system. It can take many forms, including communications about price trends, shipping and labor costs, market allocations, and benchmarks. Although these communications in and of themselves may not constitute formal agreements or combinations that violate Section 1 of the Sherman Act, they may rise to the level of an illegal implicit agreement or may be interpreted as evidence of anticompetitive behavior. For example, discussions of future pricing may well prompt a court to find an agreement to fix prices.To appreciate fully the antitrust implications of information sharing, one must understand the economic theory behind the antitrust laws. In industries with relatively few dominant players, “price and output decisions have a significant and readily perceived impact on rival sellers.“ In this setting, firms become acutely aware of their competitors reaction to pricing decisions, 3and they can develop a mutual dependency in decision making that translates into market interdependence. “An exchange of price information, by increasing information that sellers have about each other, increases their interdependence.“ The ultimate concern is that eventually, as their interdependence grows stronger, these interdependent sellers will replace their economic rivalries with a coordination of activities in order to maximize their profits as a group.Benefits of Information SharingInformation sharing has benefits as well as risks. The Federal Trade Commission (FTC) and the U.S. Department of Justice have recognized that “to compete in modern markets, competitors sometimes need to collaborate“ to pursue goals such as expanding into foreign markets, funding expensive innovation efforts, and lowering production and other costs. Such collaborations, which include information sharing, can benefit consumers by helping the collaborators reduce prices, improve quality, and market new products more quickly. Thus, they can foster competition.Sharing information about buyers, sellers, products, and services can also help markets function more efficiently by making it easier and less expensive to determine which consumers want which products and services under which circumstances. In the words of noted economists Fred Cate and Michael Staten, “businesses can anticipate customers needs and measure the demand for potential products and services . . . by examining patterns of customer transactions, comparing customer information shared across different institutions, *18 and using that information to understand customers objectives better.“4Information sharing also makes it easier to know which prospects to target for a particular product or service. This “target marketing“ is more cost-effective than mass marketing, and a portion of the costs saved by this more efficient approach can be passed on to consumers. Target marketing also promotes competition because it permits new and small businesses, which could not survive if they had to engage in costly mass marketing, to identify and reach their audiences.Consumer credit illustrates the point that consumers have gained expanded access to products and services because of information sharing. Thanks at least in part to the widespread credit reporting permitted in the United States under the Fair Credit Reporting Act and the availability of computerized credit histories, American consumers enjoy access to more credit from more sources more quickly and economically than do consumers in other parts of the world.Information sharing across companies also helps businesses respond to consumers demand for one-stop shopping. For example, to satisfy consumers demand to obtain information on all of their business dealings in one place from a single monthly statement, a single website location, or a single toll-free number, a companys different affiliates must be able to share customer information.Finally, the Internet has revolutionized franchise systems ability to share information among franchisees and franchisors. As an example, in the food industry, franchisees are able to share information concerning menus, ingredient lists, merchandise, and equipment. In the hotel industry, a website called Hotel I establishes cross-marketing partnerships with leading hospitality and technology vendors. The website also permits 5information sharing on customer relationship marketing. Franchisors provide intranet forums that allow franchisees to discuss sales and marketing technologies, automation, and proprietary accounting systems, as well as vendor relationships. In short, “a well configured intranet facilitates conversation and information exchange in a way heretofore impossible. Franchisors communicate instantly with franchisees, who communicate instantly with one another, all of whom communicate, as desired, with vendors and suppliers.“How Do Courts View Information Sharing?Courts find information-sharing agreements to be per se unlawful under the Sherman Act if such agreements are “so likely to harm competition and to have no significant procompetitive benefit that they do not warrant the time and expense required for particularized inquiry into their effects.“ Few acts are deemed per se illegal today, and information-sharing agreements are normally not among them. However, agreements by competitors, i.e., “horizontal“ agreements, to fix prices or output or to share or divide markets by allocating customers, suppliers, territories, or lines of business are per se illegal.Courts judge other conduct, including information sharing, under a rule of reason, which requires a searching factual review of the history, purpose, justification, and, crucially, overall competitive effect of the conduct in the relevant product and geographic markets. The rule of reason requires “a flexible inquiry“ that “varies in focus and detail depending on the nature of the agreement and market circumstances.“ The central question in a rule-of-reason analysis is “whether the relevant agreement likely harms competition 6by increasing the ability or incentive profitably to raise price above or reduce output, quality, service, or innovation below what likely would prevail in the absence of the relevant agreement.“However, the courts did not always analyze information sharing under the rule of reason. A brief review of evolving precedent in this area offers insights into the factors on which courts focus today.The Manifest Purpose DoctrineThree decisions by the U.S. Supreme Court during the 1920s placed information sharing on a collision course with the antitrust laws:- American Column however, the more frequent the meetings, the more likely they are to facilitate 14the establishment and policing of a price-fixing conspiracy. Based on this analysis, the Second Circuit reversed the district courts decision to dismiss the case.Franchise-Related DecisionsThe most notable franchising decision to date is Krehl v. Baskin Robbins Ice Cream, in which a class of franchisees sued the franchisor, its subsidiaries, and its area franchisors; they alleged a host of antitrust violations, including, among other things, price fixing. One basis of the price-fixing allegation was that the defendants exchanged wholesale and retail price information that allowed them to calculate how high they could raise prices without suffering a significant drop in sales volume.The California federal court, in a decision that was *21 affirmed by the Ninth Circuit, held that the mere sharing of information was not an antitrust violation. The court noted that the information exchanges were only sporadic and did not involve all defendants. Moreover, there was no reciprocal understanding among the defendants to exchange price information. Thus, the court concluded, the “plaintiffs case was too weak to lead the court to draw the inference that there was a price-fixing conspiracy based upon an agreement to exchange price information.“Of course, the fact that the Baskin Robbins court did not hold this particular information sharing wrongful does not immunize franchisors or franchisees from the possible dangers inherent in information sharing. Franchising has changed dramatically since 1979 when the district court decided Baskin Robbins. Today, it is far more likely that many franchise competitors will be under one corporate umbrella. As franchising has matured, 15trade association gatherings and other opportunities for meetings among competitors occur more frequently.Moreover, franchisors and franchisees now have the ability to establish sophisticated Internet, intranet, and extranet systems that may serve as vehicles for information sharing. Websites for various industries, such as food and lodging, act as clearinghouses for franchisors to gain insights into matters such as target marketing strategies in order to build efficiencies in securing a stronger customer base. Although these forms of information sharing are certainly legal, competitors at some point may use similar information systems to share more problematic information, such as information on pricing and costs.Information sharing also raises antitrust concerns for franchising in connection with business-to-business exchanges, which are Internet-based electronic markets designed to permit businesses (but not individual consumers) to communicate and transact business with each other through a website or portal.Rule-of-reason violations are difficult to establish, particularly because the “relevant product market“ is usually so broad that a restraint normally will not have a sufficient anticompetitive effect on the relevant market as a whole. Information-sharing arrangements thus can be difficult to challenge. Nevertheless, franchise systems, like other businesses, can exist in concentrated markets with demand characteristics like those that concerned the Second Circuit in Todd, and courts may rule that they conspired unlawfully with competitors.Minimizing the Risks of Information Sharing16FTC GuidelinesThe FTC and the Justice Department have issued Antitrust Guidelines for Collaborations Among Competitors (FTC Guidelines) to explain how the agencies analyze antitrust issues that arise when competitors collaborate, including when competitors share information.FTC Guidelines recognizes that information sharing may sometimes increase and sometimes limit competition. For example, “sharing information regarding technology, know-how, or other intellectual property may be essential to achieve the procompetitive benefits of an R the evaluations focus on factors such as the nature of the collaboration, how it is organized and governed, and what safeguards have been put in place to prevent or minimize disclosure of this information.FTC Guidelines cites several examples of these types of safeguards. In an R- the information at issue is more than three months old;- each disseminated statistic is based on data reported by at least five providers, with no individual providers data representing more than 25 percent of the data; and- the information is aggregated so that the prices charged or the compensation paid by any individual provider cannot be identified.In sum, the factors on which both courts and regulators focus when they weigh the antitrust implications of information sharing include the reason for the information exchange, the type of information exchanged, the currency of the information (that is, whether past, current, or future transactions are involved), the frequency of the exchanges, the form in which the information is presented (that is, whether aggregated or disaggregated), and the characteristics of the industry that make it easier or harder for collusion to occur (including, for example, ease of entry; product homogeneity; speed at which the relevant technology changes; demand elasticity; and the frequency, size, and transparency of industry transactions). Judicial decisions and agency actions suggest that antitrust concerns are least likely to arise when the information exchanges increase competition rather than limiting it, when the information is public rather than private, when the transactions covered are past rather than future, when the exchanges are infrequent rather than frequent, when the information is aggregated rather than disaggregated, and 20when the characteristics of the industry would make it difficult for collusion to occur.ConclusionInformation exchanges have been an antitrust concern almost since the inception of the antitrust laws. While information exchanges can offer many benefits, both to franchise systems and to consumers of their products and services, some information *23 exchanges have anticompetitive effects, and some, particularly those related to prices, can be used to circumvent the antitrust laws.By expressly shifting judicial focus from the purpose of an information exchange to its effect on the marketplace, the U.S. Supreme Courts decision in Container Corp. has increased the risk that innocently conducted information sharing will violate section 1 of the Sherman Act. Some believe that the regulation of information exchanges since Container Corp. has been “vacillating and inconsistent“ and that courts have failed “to appreciate fully the economic consequences of this practice.“ Nevertheless, Container Corp. does give courts stronger means to check unlawful information exchan