Antitrust Policy

Prebid.Org, Inc. (the “Corporation”) is intended to promote cooperation in the development of certain open source technology and related materials. The Corporation is necessary to enable its members to develop an open standard for transparent and interoperable header bidding solutions. The Corporation is narrowly tailored to achieving this goal. The Corporation is not organized to and does not play any role in the competitive business decisions of its members or potential members, nor does it in any way restrict competition among members or potential members. The Corporation’s members shall not discuss or coordinate individual bidding activity, strategy, customers, costs, employee compensation, hiring, or pricing (including the development of price ceilings, floors, or ranges). It is the express Policy of the Corporation to comply with all applicable federal, state, and foreign antitrust laws. This Policy has been prepared to inform Corporation members, staff and participants of this obligation.

It is the responsibility of each member, staff and participant to comply with the antitrust laws and this Policy.

1. Antitrust Laws

1.a. Prices, Bids, and Compensation

Agreements among competitors to fix prices or coordinate bids are per se unlawful and can result in criminal liability. Corporation members shall not discuss, signal, or exchange information about member company bids, sales opportunities, customers, costs, employee compensation, hiring, prices, or other competitively sensitive information. Members SHALL NOT discuss any element of a company’s operations which might influence pricing, bids or compensation decisions, such as:

  1. Cost of operations, supplies, services and technology;
  2. Allowance for discounts or rebates;
  3. Terms of sales and licensing, including credit arrangements;
  4. Profit margins and mark ups;
  5. Transaction-specific past, present or future prices or costs;
  6. Requests For Proposal, bids, or bidding opportunities;
  7. Business, product, or marketing plans;
  8. Employee compensation, benefits, recruitment, or hiring;
  9. Market shares for any product or for all products; and
  10. Actual or projected changes in production, output, capacity, or inventory.

1.b. Markets

Antitrust laws expressly prohibit any agreement between competitors to divide or allocate markets, including by geography, distribution channel, product type, and customers. Even an informal agreement whereby one member merely implies that it will stay away from another member’s territory or customers in exchange for reciprocity may constitute a per se violation of the antitrust laws and must be avoided. Members SHALL NOT discuss who will and will not compete for business along any of these dimensions. Agreements not to compete in any fashion, including in the hiring or poaching of employees, is forbidden.

1.c. Exclusion

Agreements among Corporation members to “boycott” or exclude a competitor from a market or a competitive activity are unlawful. Illegal group boycotts include “blacklisting” or agreeing to refuse to deal with a particular distributor or supplier. Members SHALL NOT discuss excluding or discriminating against other companies from any product, geography, technical standard, customer, source of supply, or distribution channel.

2. Membership

Corporation membership is subject to conditions that are non-discriminatory and objective. Membership to the Corporation is voluntary and each member of the Corporation retains absolute commercial freedom. No member is required to apply Corporation-compliant standards. The Corporation SHALL NOT:

  1. Exclude qualified competitors from membership in the Corporation for any anticompetitive purpose;
  2. Restrict Corporation members from dealing with non-members or
  3. Limit access to information developed by the Corporation unless such limitation is firmly grounded upon the need to protect trade secrets or other intellectual property rights.

3. General Operating Procedures

a. Understanding and sharing information on industry trends and conditions will be important for the Corporation to succeed in achieving its purpose of enabling its members to develop an open standard for transparent and interoperable header bidding solutions. Fortunately, antitrust enforcers recognize that sharing some types of information with competitors can benefit markets, businesses, and consumers alike if done with “adequate safeguards.”

b. Keeping your conversations within these simple guardrails will ensure that you stay within the lanes of the law:

  1. You MUST hold discussions in open settings and avoid situations that could be seen as secretive.
  2. In order to ensure that Corporation activities are conducted fairly in a manner that does not unduly benefit some competitors to the detriment of others, an agenda MUST be distributed prior to meetings and meetings shall adhere to the agenda. Meeting minutes shall be prepared and MUST accurately reflect the matters that transpired and MUST comply with this Policy.
  3. You CAN discuss high-level, aggregate information regarding industry trends and expectations, rather than transaction-specific or company-specific data.
  4. Generally, you CAN discuss industry public relations, litigation, legislation, lobbying, and long-term trends are generally appropriate.

c. Antitrust violations can be inferred from the parties’ conduct and so it is important to avoid even the appearance of improper discussions.

  1. If you believe a conversation is approaching an improper subject, you must report any violations of this Policy concerning Corporation activities to the Corporation’s counsel; and MUST clearly state that:
    1. You have concerns about the comment or suggestion;
    2. Discussion on that topic must stop; and
    3. You will discuss this with counsel before deciding if it can proceed.
  2. If the request is ignored, the meeting SHOULD stop and counsel should be advised.

d. No Corporation member, staff or participant SHALL have authority to communicate with government officials regarding matters related to the Corporation without prior approval of the Corporation’s counsel.

e. This Policy and standards of conduct set forth above SHALL apply to Board meetings, committee meetings, informal member meetings, social events, such as luncheons, receptions, and dinners, and any other activity related to the Corporation.

f. All Corporation members, staff and participants staff SHALL report any violation of this Policy to the Corporation’s counsel.