Trade associations are often made up of groups of competitors who intend to collaborate for lawful business purposes. While this collaboration can drive innovation and produce efficiencies, it also creates opportunities for unlawful coordination. Data centers must be careful in their participation and should do the following:

• Establish clear compliance policies. Every data center should have a robust antitrust compliance program tailored to its operations and activities. This includes regular training for employees who interact with trade associations, clear guardrails on permissible conduct, and specific procedures for reporting concerns.
• Monitor and audit information sharing. Avoid sharing or discussing competitively sensitive information, such as pricing, costs, capacity, customer lists or future business plans, during association meetings or informal gatherings. If such topics arise, members should object and, if necessary, leave the discussion.
• Set agendas and keep good records. Ensure that all association meetings have pre-set agendas reviewed by counsel for antitrust risks. Keep detailed minutes of meetings, noting any departures from the agenda and documenting that no inappropriate topics were discussed. Involve counsel when necessary.
• Use legal counsel as a resource. Before engaging in association initiatives – such as joint research, standard-setting or lobbying – consult with legal counsel to assess antitrust implications and applicable risk mitigation measures. Legal review is critical for activities that could impact competition, such as developing industry standards or codes of conduct.
• Avoid exclusionary practices. Trade associations should have objective and transparent membership criteria. Excluding competitors without a legitimate business justification may be viewed as anticompetitive or discriminatory. Similarly, association rules or standards should not unfairly disadvantage certain members or market participants.
• Respond promptly to concerns. If a data center representative suspects a potential antitrust violation, they should report it immediately to their compliance officer or legal counsel. Prompt action may mitigate risk and demonstrate a commitment to compliance that regulators may take into consideration during an investigation.

Conclusion

From networking to shaping industry standards, participation in trade associations offers significant benefits for data centers. However, these advantages also come with great responsibilities. By implementing strong antitrust compliance measures, monitoring association activities and fostering a culture of compliance, data centers can protect against significant legal risks while contributing to greater competition and innovation within an industry. In the ever-evolving world of data infrastructure, staying compliant is not just good practice – it’s essential for long-term success.