July 10, 2012
AALL's "Approved" Antitrust FAQ: A BS-Free Resolution for Our Association's De Facto Antitrust Policy
Do other professional associations
The FAQ's "answer" to Question #10 is "yes."
"American Library Association discusses its antitrust policies here." (Link embedded emphasis added).
OK, well that is just another FAQ. Considering ALA's recent advocacy actions of behalf of its institutional members and their patrons, ALA's FAQ does make for interesting reading since ALA clearly is not afraid of and has not been sued or investigated for that library association's example-setting actions. The ALA FAQ does, however, offer answers to topics omitted from AALL's FAQ which are directly related to the antitrust issue, most notably the role of lobbying activities which certainly is relevant to petitioning federal and state governments as consumer advocates.
A link to SLA's "policy" is also provided in response this, the last question, in AALL's FAQ. It sends interested readers to a wide-ranging "Legal Issues" narrative but for additional information that text cites to SLA's Tax and Legal Handbook. AALL "approvers" apparently thought obtaining a copy of the Handbook wouldn't make for interesting reading by AALL's rank-and-file members.
Of course, all this assumes that whomever included the ALA and SLA links into AALL's FAQ answer to Question #10 actually read the content in the linked documents.
Is our Executive Board "approved" Antitrust FAQ an official AALL policy statement? The question is prompted by several Q & A's in AALL and Antitrust: Frequently Asked Questions (FAQ). See sidebar right for one example.
The fundamental issue is presented in the very first Q & A:
1. Why do we need an antitrust policy?
The Executive Board feels a responsibility to provide members who are interested in consumer advocacy issues with information that would help them act in a manner that would not subject them or the Association to legal liabilities. Some activities of professional or trade associations may subject the associations or their members to liability under the antitrust laws. At its 2011 Summer Meeting the AALL Executive Board considered a proposed antitrust policy that was an effort to provide members with information on how the Sherman Antitrust Act could affect their activities. The Board did not adopt the proposed policy in order to allow more careful understanding and evaluation of the issues currently of concern to AALL members.
Ah, OK. In some unbelievably sloppy language that is usually corrected during 1L LW&R courses, the Executive Board "feels a responsiblity" to provide the membership with some "information." Thoughts and feelings are not the same. Emotions are physical sensations and, as we all should know, such feelings can distort reality if logic is not applied to understand them.
So did the "approvers" of AALL's FAQ have a collective emotional moment? If so, is it one that might require group therapy? Talk therapy in AALL-land might be the next order of the day. Will we see all E-Board members at Antitrust Considerations and the Association (Monday, July 23, 2:45 pm – 4:00 pm in HCC-Room 306)? Or will some, if not all, of our "approving" elected officers be too busy rehearsing for the immediately following AALL General Business Meeting and Members Open Forum (4:15 pm - 5:30 pm in HCC-Ballroom B)?
Moving beyond this uncorrected IL student legal writing practice, the FAQ's very first "answer" provides some "information" but "information" is not an official AALL statement of antitrust policy. Do note well that the "Antitrust Considerations" session also is not intended to be a discussion of policy. For all practical purposes, it assumes one already is in place. From the session's blurb:
Join in this practical exploration of how antitrust issues relate to associations, led by Shaun Esposito, CRIV Chair 2011-2012. Stephen W. Armstrong, Senior Counsel and chair of the Antitrust Practice Group at Montgomery, McCracken, Walker & Rhoads, LLP, will provide a brief overview of antitrust concerns relevant to professional organizations. AALL Vendor Liaison Margaret Maes will briefly summarize the “AALL and Antitrust FAQs” recently published on AALLNET, with Armstrong providing commentary and analysis of the FAQs. Esposito and Maes will then take turns presenting fact scenarios to Armstrong based upon activities that AALL members and leadership have identified as key challenges facing associations when considering action at the organizational level. Audience members will then be invited to ask questions or present fact scenarios of their own for consideration.
The spoon-fed "fact scenarios" from the podium to AALL's new (and for the first time identified) antitrust legal counsel will be very interesting in a top-down sort of communciations way. Certainly the audience will hear some well-crafted Do's and Don'ts. Much more interesting will be the selection of (and omission of) fact scenarios presented by Maes and Esposito to Armstrong. I think this part of the program will remind law school grads of a canned session of the Socratic method of learning to "think like a lawyer." However, in this case, the "students" on the podium will be posing the questions to the "law prof-like" expert so the so-called learning outcomes are really intended for the audience to learn how to think like our association leadership currently does based on a de facto antitrust policy.
A close reading of the FAQ can, however, extract what AALL's de facto antitrust policy is. And here it is in the form of a resolution.
A Resolution Supporting Competition and Fair Business Practices in the Provision of Commercial Legal Resources
WHEREAS, the American Association of Law Libraries endorses federal and states public policies promoting competition and fair business practices in the commercial marketplace; and
WHEREAS, the Association is the largest non-profit organization of academic, government, public and private sector institutional consumers of legal resources in these United States; and
WHEREAS, the Association fully supports the eradication of unfair and deceptive practices in the commerce of legal resources in all formats by both the rigorous enforcement of existing federal and state laws and regulations and the enactment of new laws and regulations to protect consumers; and
WHEREAS, the Association fully supports the eradication of anti-competitive business practices in the commerce of legal resources in all formats under current and/or future antitrust laws and regulations that provide consumers with certain rights and immunities under the Noerr-Pennington doctrine and protects States’ rights to govern under the Parker doctrine; and
WHEREAS, the Association acknowledges that the First Amendment of the United States Constitution guarantees that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” and that the States have enacted similar guarantees essential for a free society.
NOW THEREFORE BE IT RESOLVED that the general membership of the Association affirms that the eradication of anti-competitive and unfair and deceptive practices shall be the objective for any and all official actions to engage in a lawful program of robust consumer advocacy sanctioned by the Association.
BE IT FUTHER RESOLVED that the Association encourages the efforts of those legal resources consumers who individually or collectively as a class of representative consumers lawfully document anti-competitive, unfair and deceptive practices and seek to redress their grievances through all lawful means on behalf of consumers of commercial legal resources throughout the nation. HOWEVER, no such efforts by those legal resources consumers who may be members of the Association including but not limited to elected officials, committee and caucus members at the national or chapter level are authorized to or are acting with the apparent authority of the Association. ACCORDINGLY, the Association disclaims any and all advocacy efforts on behalf of legal resource consumers by its members that the Association’s Executive Board or the general membership of the Association have not affirmatively approved in a timely manner by resolution following the procedures set forth in the By-Laws of the Association.
I believe the above is a fair statement of AALL's de facto policy but I have no intention to propose the resolution since I have a number of issues with it, professionally speaking but only from my own POV. Frankly, one doesn't need to be an expert in antitrust law as it applies to professional associations who represent institutional buyers to see where our association's leaders are heading on this issue.
Nor does one need to be an antitrust expect to be or become informed about relevant issues as it applies to professional associations. Experts can always be retained later. There are plenty of reliable monographs to "read more about it." Some, well actually one, of the titles listed below (see the second listed title) includes very prophylactic measures recommended based on its trade association-centric analysis as if those measures are entirely appropriate for library associations.
Suggested Reading List
The following suggested reading is, I believe, a non-partisan selection. Certainly I am neither recommending nor even suggesting that interested rank-and-file members try to cram for the upcoming "Antitrust Considerations" session by reading them all now. Interested and engaged rank-and-file members can certainly "reading more about it" after Boston 2012, although some members might want to start now.
My hunch, however, is that AALL "approvers" failed to do their own due diligence in their official capacity. Instead they hide behind the cloak of the "apparent authority" of legal counsel. According to the soon to be former AALL President Darby Kirk's June 2012, AALL E-newsletter:
The Executive Board met on June 7 by conference call to consider Antitrust FAQs that were drafted to address member questions about antitrust law and AALL. We consulted with an antitrust lawyer, Stephen W. Armstrong from the firm Montgomery McCracken in Philadelphia, to draft the FAQs.
If our elected national officers want to do the job they are expected to do by the rank-and-file as "leaders" of AALL instead of trying to catch up to the rank-and-file to justify being "leaders," then this reading list is also provided for their benefit. Some might consider it one of those "Learn, Connect, Grow" "proposals" as a "positive and forward-thinking theme for the upcoming year and the 2012 Annual Meeting to be held in Boston." Hell, for one, I won't object if AALL membership dues are spent to provide each one with a personal copy.
1. ABA Antitrust Section, Monograph No. 19, The Noerr-Pennington Doctrine (1993) (113 pages) which is only available from re-sellers via Amazon.
While it focusing on the right to petition, one should take into account that the traditional view that First Amendment rights are “cut from the same cloth” and thus “are inseparable,” may no longer be the case. See Justice Kenedy's opinion in Borough of Duryea v. Guarnier, 131 S. Ct. 2488 (2011). Kennedy wrote that there could be cases “where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis” and where the rights of petition and free speech “might differ in emphasis and formulation." See Krotoszynski's Reclaiming the Petition Clause: Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for a Redress of Grievances (Yale UP, 2012) (Borough of Duryea v. Guarnier "suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition.") My April 2012 post about this speculation can be found here. There may be an analysis of the antitrust implications of Borough of Duryea or even antitrust opinions citing the dicta but I haven't looked into that because I'm no antitrust expert but the dicta could be a good thing. However, I do not see it reflected in the formulaic Antitrust FAQ.
My bottom line is that this 1993 ABA monograph remains a very good doctrinal law starting point, assuming you haven't read it yet. Why? Basing arguments on academic speculation can be weak. However, basing arguments on ALA's official consumer advocacy activities are not weak.
2. ABA Section on Antitrust Law, Antitrust and Association Handbook (2009) (248 pages), available from the ABA bookstore.
This text can be viewed as the "Bible" for trade and industry-setting standards associations. Library associations are neither. The work does discuss professional associations like AALL but the "Sample Association Antitrust Compliance Policy" and "Association Antitrust Reminders and Meeting Guidelines" fail to make important distinctions. Do note that when I think of ALA's recent eBook advocacy efforts in the context of this work and AALL's FAQ, I find ALA to be taking a much more aggressive approach than the prophylactic measures recommended by this ABA title.
3. ABA Section on Antitrust Law, Market Power Handbook: Competition Law and Economic Foundations, 2d ed. (2012) (183 pages), available from the ABA bookstore. Recommended because it tries to approach market power in a non-technical manner. I say "tries" for good reason because that is relative to the uber technical economic analysis that has taken over the original "trust-busting" federal legistative intent. I'm not implying that this is a "bad thing." Hell, it is the one instance where academic legal scholarship has actually contributed to real world statutory interpretation by way of regulatory enforcement. However, the "non-technical" characterization is relative because it does require a fair amount of "law and economics" homework.
4. For unfair and deceptive practices at the States' level and at the FTC federal level, Pridgen & Alderman's Consumer Protection and the Law, 2011-2012 ed. (2 vol. West "pamphlet", 2011) looks good enough. I say "looks good enough" because (1) we didn't own the earlier edition so I have no idea how well it has been updated with caselaw and state statutory changes and (2) when I ordered the work in April, I insisted that my library not be placed on standing order for later editions. This is not a "buy" recommendation because there are excellent and substantially less expensive than the $867 WestMart list price for god knows how many of the 2,500-plus pages were actually updated with something more than Keycite string citations.
End note. Even an old dog like me can still learn a new trick or two. The National Consumer Law Center publishes in print (with low cost print updates and companion websites) some damn good resources that fills the gaping hole in the offerings by WEXIS like the above mentioned Consumer Protection and the Law title. My one-time purchase of Consumer Protection and the Law was an experiment in whether our county law library patrons would opt for "Brand Recognition" instead of professional editorial quality. They have not -- the National Consumer Law Center's regularly updated publications circulate more than anything even close to being comparable by WEXIS in our little county law library. Who will be the first to license them? BLaw, Lexis or TR Legal? But I digress... . [JH]
I am disappointed that AALL's leadership missed an opportunity to more fully engage the membership on the issue of association antitrust. At the Open Forum in 2011, John Austin asked then President Joyce Janto to broaden the legal advice AALL receives, on the grounds that AALL might engage "advice that is more consumer oriented." (103 LAW LIBR. J. 736 (2011) Joyce assured us that the Board Administration Committee would "seek comment from many other people" as it investigated the issue. I am not aware that the Committee sought comment from any other attorneys than AALL Counsel Lisa Stegink, an antitrust attorney Steve Armstong, and (apparently) a law professor (whose specialization I can not recall.) If AALL had instead given members opportunity to participate, they could have engaged experts on association immunity under the Noerr-Pennington Doctrine. Under this doctrine of case law, AALL has the right to petition governmental entities for stronger consumer protections. Unfortunately, the FAQ makes no reference to this essential right. The omission would have been avoided if AALL had provided its members with more transparency and a meaningful opportunity for participation. Because it was avoidable, the omission strikes me as sufficient to raise a credible doubt about AALL's commitment to consumer advocacy.
Posted by: Michael Ginsborg | Jul 10, 2012 9:01:57 PM