January 11, 2012
AALL's Biggest Blunder of 2011
It's a tough call but I think our association's way-over-the-top antitrustism takes the cake. While a draft (actually it was a second draft) antitrust policy was rejected by the AALL's Executive Board last summer, and the first version of its web communications policy was revised our organization has implemented a fairly restrictive means of web communications that still echoes in antitrustism. It is fair to say the implemented AALL's web communications was based on the rejected antitrust policy.
Is there really a need to revent this wheel? ALA's statement of its legal framework works just fine. Quoting from Twenty questions and answers (last updated 3/12/08) about antitrust considerations and member communications, Questions 13 and 14 are sufficient. Quoting from pertinent parts:
13. Some of the most damaging claims brought against associations have related to antitrust laws. Are antitrust laws relevant to ALA?
Yes. While ALA may be different from a trade association in the extent of its exposure, antitrust laws are relevant. This is a broad and complex area of the law and there are numerous ways in which associations are impacted.
ALA cannot, for instance, encourage a boycott of a specific vendor, product or service. This does not mean that there cannot be discussion of a specific product, service or vendor at ALA meetings or in ALA publications. But, as relates to antitrust considerations, such discussion may not seek to fix prices, regulate the availability of services or products, encourage unfair practices, encourage non-competition, or encourage boycotts.
14. Does the Association have to be “officially” involved for an antitrust violation to occur?
No. The 1982 case American Society of Mechanical Engineers, Inc. v Hydrolevel Corporation determined that the association’s volunteers and lower-level staff members caused competitive injury, although the association’s leadership was not aware of the activities and had not approved them. The Court ruled that the association was liable because it failed to prevent antitrust violations by its volunteers and staff, who had acted within their “apparent authority” in speaking for the Association. Treble damages were assessed the association under provisions of the Sherman Act.
There is absolutely no reason why any AALL individual member can not speak about antitrust issues in a real or virtual forum as long as that member qualifies (1) that statements made are his or her own professional assessment of a single vendor or the legal publishing industry's market structure, practices and procedures and (2) the the person's intent is not to use an AALL venue to incite a boycott, etc. Professional expertise so qualified removes the "apparent authority" concern. I think we all know how to say, "this is my opinion and only my opinion."
There is also absolutely no reason AALL rank and file members can not gather professional intelligence about practices and policies believed to be antitcompetitive for actions individual or groups of members who want to take action on their own iniative, even as a group, as long as any such actions clearly state that they are representing their institutional buyers and are not sanctioned by AALL. In a nutshell, perhaps the association staff -- from AALL's Executive Director to the Vendor Liaison -- are the only individuals who may not join such actions. Even elected office holders from the Executive Board, to Special Interest Groups to the leve of AALL chapters have not given up their rights of freedom of speech, association and petition their governments because they hold elected AALL-related positions. All they have to do is include a disclaimer.
There is also absolutely no reason the AALL Caucus on Consumer Advocacy can be prohibited from gathering professional intelligence for the purpose of convening resolutions to the Executive Board that call for promoting legislative and regulatory corrective issue by issue at the federal and state level because the Caucus is advising, some would say, lobbying the Executive Board to take action under Board authority. In the event that the Board rejects any such Caucus proposals, institutional buyer representative are free to take up the iniatives on their own or by way of grassroots groups to petition their governments. An offical AALL rejection removes any "apparent authority" concerns.
But first, our association has to provide a means of open communications because the current rules protect no one but our vendors. ALA has got it right. AALL has got it wrong.
Recently I realized that I was nominally, semi-automatically enrolled in AALL's current web communications platform because I was receiving emails from my government libraries special interest group for months. No problem but when I went to activate my account, I was presented with AALL TOS rules. This time I clicked "agree" and even joined a couple of other web communities. I don't anticipate I will be participating but if I do and somehow violate the "rules" I'll leave it up to a vendor member monitoring the forum to make the objection.
On Jan. 3, 2011, we all probably received notice about the new "AALL Members Open Forum" which stated in part:
By default, all current AALL members will automatically be set to receive messages from this eGroup as a daily digest.
I saw nothing that stated that this "AALL Members Open Forum" is exempt from AALL's web communications rules. What the heck, join the web communities and ignore its restrictions until our association gets its collective act together. Just remember to include a disclaimer! [JH]
End Note. See also ALA's official statements to questions 7, 8, 9 and 10 about direct lobbying, grassroots lobbying, providing testimony before Congress and association lobbying registration requirements.