Reader beware:  I have never been an antitrust attorney, and I have not been a member of the bar since 1996.  Hence my trepidation in opining on this subject.  The Internet is abuzz this morning about proposed AALL antitrust policies to be considered by the Executive Board this week, before most members attending the annual meeting will have arrived.  The board’s meeting agenda and proposed policies are here. For good background on the topic, see Sarah Glassmeyer’s post, The Librarian as Consumer Advocate, and one by Michael Ginsborg, who is a principle organizer of a nascent consumer advocacy group (AALL caucus?)  who asks, Can AALL Members Organize For Consumer Advocacy If AALL’s Executive Board Adopts A Proposed Antitrust Compliance Policy On July 21st?  Joe Hodnicki has addressed the subject of vendor relations and the AALL vendor colloquium repeatedly at Law Library Blog.  So far this morning there has been a smattering of discussion on the academic law library director listserv.

The policy and its proposed guidelines, if adopted, will effectively create a gag order not only on the executive board, which is the entity charged with governance of the association, but its members and affiliates.  This would extend to chapters, which are generally separate corporations that are recognized as affiliates by AALL.  Most of the commenters thus far, including me, wonder whether the board’s counsel has adopted an overly conservative position with regard to the potential for the association to be suspected of violating the Sherman Antitrust Act.  Since we are not experts in this area, thus far we are confined to wondering, without really resolving the question.  A major premise of the draft is that because the association is organized by members, who are themselves affiliated with other organizations, the need for the court to find the existence of a “combination” within the meaning of that term is made very much easier than it otherwise would be. The guidelines purport to put the kibosh on all discussions by its members in any setting on any topic that could perhaps be thought of as affecting pricing or vendor relations.  In effect, by adopting the proposal, the association will present its members with a Hobson’s choice:  if you care about these issues, don’t belong to AALL.  Then a complaining party will have the burden of proving the existence of an unlawful combination.

It seems to me that this is the first time I have ever heard of a voluntary association going out of its way to persuade its membership to leave!  AALL Executive Board, what in blazes are you thinking, and why would you consider adopting such a policy BEFORE the membership can collectively voice its opinion to you?

Update: A few more questions

Counsel: In yesterday’s article about libraries abandoning Big Deal vendor contracts for databases in the Chronic of Higher Education, the author reports

The library joined forces with Oregon State University and eventually with Portland State University to analyze usage and talk about how to collaborate on collection development. Then, armed with spreadsheets, “we went to Elsevier and said, ‘Hey, we want a deal,'” Mr. Fowler said.

At the Bargaining Table

The publisher did not exactly welcome the libraries’ request for a renegotiation of terms, he said. “Although I can’t imagine they would have been surprised, given the general economic situation in library-land, they were a little skittish at first.”

According to Mr. Fowler, Elsevier asked for separate meetings with the three institutions. They declined, seeing it as a divide-and-conquer strategy. Once at the negotiating table, however, “Elsevier played pretty fair,” he said. “I would say that they were at least moderately surprised that we were so well prepared with our facts and figures, but it was a good thing for us.”

Was there not a risk of antitrust action there, counsel?

AALL is governed by its executive board, not by its members, save to elect board members and vote in extraordinary situations.  Why are the discussions of its members, outside of a formal meeting, imputed to other members or to the association itself?