Antitrust Issues in Troubling Economic Times

Despite the relatively old body of law governing competition, antitrust issues still beguile credit grantors regularly and violations of those laws can be easily made and painfully costly, especially in a recession. "This topic becomes more and more important everyday especially in today's economy," said Wanda Borges, Esq. of Borges & Associates LLC. In a recent NACM-sponsored teleconference, Borges offered listeners all they needed to know about what they can and cannot do, what can and cannot be discussed, when and how credit terms may be adjusted and what is covered under the various antitrust statutes. 

In an economic downturn, many credit-granting companies will turn to their competitors for information on a particular customer's past payment behavior. "Your natural fear is, ‘well, I need credit information, I want credit information, I want to reach out, how can I do that safely?'" said Borges, noting that, despite the sometimes vague regulations, "You can do that many ways, completely safely."

First and foremost, Borges recommended that credit professionals looking to others in their industry for information learn to make a record of their communications, in order to maintain their innocence should things get legally troublesome. "Put everything in some form of writing, either email or faxes," she said. "I would recommend no longer picking up the phone and asking your fellow competitor ‘hey what are you doing with this customer? Are you selling to them?' The next statement will be ‘what are you going to do when they get caught up?'" she added, noting that this type of forward-looking statement is exactly the sort of thing that could get credit professionals and their companies in trouble.

"Having that kind of conversation can lead you right to a Sherman Act violation," said Borges.

Still, she urged attendees to put their trust in the exchange of credit information for the sake of their business. "The exchange of valid, good credit information is not only permissible, but is more and more on a daily basis essential to you," said Borges. "It has become commonplace for me to hear stories, but I just heartily suggest having those conversations in writing and not having them on the phone." 

Borges used three true scenarios to educate listeners about what was permissible and what was not and also discussed the various antitrust statutes and what actions constitute illegal business practices. For more information on NACM's teleconference series, or to register, click here.
Jacob Barron, NACM staff writer

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