DOJ resolves antitrust investigations into trade association standards-setting activity

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On 12 December 2019, the Department of Justice Antitrust Division (DOJ) announced that it has entered into a proposed consent decree with the National Association for College Admission Counseling (NACAC) settling charges that the NACAC’s Code of Ethics and Professional Practices (NACAC Code of Conduct) violated the antitrust laws. The NACAC settlement is a reminder that a code of ethics can violate the antitrust laws if it restricts legitimate competition. The consent decree comes just a few weeks after DOJ concluded another investigation related to antitrust concerns over the standard-setting activities of the GSM Association (GSMA), a trade association for mobile network operators. These two cases are the latest examples of how the U.S. antitrust regulators apply antitrust law to a trade or industry organization’s standard-setting rules, codes of conduct, and ethical guidelines if they may have anti-competitive effects in a particular industry.