But can the above be true? Is it really OK for members of the same profession who are not affiliated to discuss fees privately but not OK on a listserv? Is the true intent of The US Federal Anti-trust Laws to prohibit public discussions of fees on the Internet but allow or take no position on private discussions as this listserv moderator claimed? Is that the intent of the anti trust laws?
These concepts require some examination.
The US Anti-trust Laws predate the Internet by nearly a century. Therefore is it logical to conclude that only Internet discussions are prohibited? I doubt there is any mention of the Internet in the Sherman Anti-trust, of 1890. This piece of legislation was designed to maintain economic liberty, and to eliminate restraints on trade and competition. The Sherman Act of 1890 is the main source of Antitrust law in the US. Since there was no Internet at that time is it reasonable to infer that it is only price fixing and arranging illegal boycotts that occur on the internet that would be problematic? See http://www.law.cornell.edu/wex/index.php/Antitrust
What do we mean by discussing fees?
Also for purposes of this topic the word “discussion” needs to be defined. What do we mean by discussion or discussing fees? Is merely asking a colleague (who is also a competitor if they are not affiliated) what fees they charge for individual or group sessions a violation of anti-trust? If I asked a colleague what they charge for individual or group treatment and they said I charge $X for individual and $Y for group, is that discussion a violation of anti-trust laws? If that were so, how else can someone starting out come up with reasonable fees unless they inquire what is the going rate from others in the field? If discussion means simply an inquiry without further elaboration would that be acceptable and not a violation of anti trust laws?
Conspiracy to fix prices:
Or, is the problem not simply asking a colleague what they charge but the “discussion” of what they should charge as in the example above. In the above example the listserv member went further than asking for a range of fees but also asked is their fee of $80 too high or low.
What about the respondent to the original question? Does not anti-trust issues depend on how others respond or their interaction together? What if the response said either publicly on the listserv or privately something like, “$80 a head for group therapy! Are you kidding? If there were 6 people in the group, that would be nearly $500. Few lawyers or physicians make that much an hour. Suppose they simply said, that sounds awfully high and it might not fly. Did they violate the law? Is it against the law to advise colleagues or competitors to lower prices or fees?
On the other hand suppose the responder or responders said, “Look your fee is a bit lower than what we charge. If you charge that little it might drive the price down for all of us so I suggest you charge what we charge.” If that were the case then that could be seen as conspiring to fix prices especially if the original poster raised his or her prices.
Would it really matter if that conversation occurred on the internet listserv, in a backchannel discussion or in person in a closed room or on a telephone? Why is it then that almost all internet discussion groups sponsored by trade associations are quick to limit any discussion that even comes close to appearances of discussion of price fixing?
One obvious reason is that the legal councils at the professional trade associations realize that internet discussion groups are not private. There could be literally hundreds of people following the discussions. If one were to entertain having a conspiracy of any kind it makes little sense to have one in public. Plus unlike a private conversation there is an actual record of it. If someone advised a colleague to raise their fees or refuse to join a managed care panel where fees were below a certain limit, it hard to deny if it’s in writing and can be traced to your ISP address or computer.
Is stating something like, It's not a good idea to discuss fees on the listserv; in fact, ….. I'll respond backchannel” really safe? If a conspiracy is taking place there still is a written record, but not on a listserv. There still is a record of your response on your computer, your server. etc. It may not be on the listserv itself, but does that matter? Do the listserv owners share responsibility if they encourage or facilitate their members to have discussions and form these agreements?
Historically most anti-trust violations do not occur in public forums and most people who engage in them at last try to not leave evidence. Therefore while they may meet in public they may confine their antitrust activity to private settings. Imagine if the above conversation occurred not on an internet listserv but in a social club or in an in-person get together. Suppose someone asked the same question about fees and another said something like, it not wise to have discussion with all these people around, but I’ll contact you later and we can discuss it in private. Would that be a problem? Would the social club bear some responsibility if it were known to be a place where people can meet, get acquainted and later have ant-trust conversations?
One way of looking at the discussion groups and listservs is that they are the a 21st century electronic equivalent of the social club. Are there some list owners who by a "wink and nod" facilitating or enabling practitioners to discuss fees in a way that hinders competition? Do some encourage non-affiliated providers to boycott managed care organizations if their rates are “too low”? A colleague once asked me if it is a problem for psychotherapists to have detailed fee discussions where either they agree to fix prices or engage in illegal boycotts, why is it that they are no cases of therapists being prosecuted for these offences?
That is an excellent question. I suspect one of the reasons why to date there are no known cases against mental health practitioners or listserv owners is that The Anti-trust Division of the Department of Justice finds it difficult to believe that trained professionals who should know a lot about how to keep things private would be so foolish as to use discussion groups and listservs as vehicles for these purposes. Perhaps they never thought to look.
To the above end we ask for reader's comments and discussion. Please feel free to write us at johnr@psychjourney.com
[1] con·spir·a·cy (kən-spîr'ə-sē)
n., pl. -cies.
An agreement to perform together an illegal, wrongful, or subversive act.
A group of conspirators.
Law. An agreement between two or more persons to commit a crime or accomplish a legal purpose through illegal action.
A joining or acting together, as if by sinister design: a conspiracy of wind and tide that devastated coastal areas. See http://www.answers.com/topic/conspiracy