Policies and Procedures Manual - Section 6 - Legal Requirements

 

 

Antitrust Policy

Covered individuals are required to review, sign, and return the following antitrust compliance statement.

OBLIGATIONS OF ASSOCIATION OFFICERS, DIRECTORS, COMMITTEE CHAIRS, AND COMMITTEE MEMBERS UNDER THE ANTITRUST LAWS

This is written to provide a broad summary description of the obligations you have under the antitrust laws as an Officer, Director, Committee Chair, or Committee member of the National Court Reporters Association. It is furnished to you pursuant to the requirements of the Constitution and Bylaws. Its purpose is not to provide legal advice but simply to indicate the kinds of activities and discussions that may create questions under the antitrust laws and accordingly must be avoided.

These guidelines must be observed at all times, in formal Association meetings and events as well as in informal discussions and conferences arising out of, or relating to, Association activities. They apply, for example, when you attend a state association meeting as a representative of the Association. In case of any question about the meaning or application of any of these guidelines as they affect your Association activities, you should consult with the Executive Director of the Association who, in turn, will obtain appropriate legal advice. By signing below, you will indicate that you have read this memorandum and agree to abide by it.

1. You should assume, as the enforcement authorities do, that the antitrust laws are fully applicable to court reporters, CART providers, Certified Legal Video Specialists, captioners, instructors and other members of NCRA, the same as they are to doctors, lawyers, accountants, real estate brokers, and other professionals. The antitrust laws also apply to all your activities in this Association - the fact that a violation of the antitrust laws occurs in the course of otherwise wholly legitimate Association activities is no defense.
2. Heavy penalties can be imposed on you, your company, if any, and this Association if you violate the antitrust laws in the course of your Association activities. For you personally, the penalty could be as much as three years' imprisonment, a $100,000 fine, or both. It is particularly important, therefore, to remain well within the bounds of lawful activity at all times.
3. It is a clear violation of the antitrust laws for members of the same profession or industry to reach any kind of an agreement or understanding concerning the price they will charge for their product or service, other terms or conditions of sale, or the customers they will or will not serve. Because the enforcement authorities, and perhaps the courts, may infer that an unlawful agreement was reached merely from the fact that prices or other matters were discussed at a meeting of the Association, it is prudent to avoid any discussion of the following subjects¹ except where the Executive Director has obtained advance clearance from Association legal counsel for the proposed discussion:
   1. rates, fees, or charges (such as page rates, rates for expedited service or additional copies, attendance fees, hourly rates, etc.) of any reporter or reporting company, captioner or captioning company, or CART provider or CART company;
   2. past, present, or future level of such rates and charges in general or in particular areas (either geographical areas or types of reporting work, such as medical depositions or types of CART or captioning work, such as realtime in an educational setting or captioning for a television station);
   3. costs of operation, including costs in general, particular components of costs (such as labor, equipment, etc.), costs for particular services, and changes or trends in any of these costs²;
   4. methods or formulas for setting rates or charges for any reporting, CART or captioning product or service, especially proposals for fee schedules or relative value guides or the like;
   5. transcript production or performance standards that set a maximum obligation on reporters, CART providers or captioners rather than a minimum (e.g., a page of transcript shall have no more than 27 lines);
   6. bids, bid solicitations by, or bids submitted to, any customer inviting bids, or any reporter or reporting company's, CART provider or CART company’s, or captioner or captioning company’s intentions with respect to bids;
   7. the identity or location of customers of any reporter or reporting company, CART provider or CART company, or captioner or captioning company, or whether any reporter or reporting company, CART provider or CART company, or captioner or captioning company serves, will serve, or will decline to serve, any customers or group of customers, or area;
   8. whether one or more reporters or reporting companies, one or more CART providers or CART companies, or one or more captioners or captioning companies, should boycott or refuse to provide services to any customer or group of customers, should do business only on certain terms and conditions, or should urge their customers or others to do so. (It is entirely proper, however, for the Association, its officers, or individual members to promote vigorously the benefits of shorthand and realtime reporting, CART, or captioning to potential users of reporting, CART, and captioning services (both government and private), to describe to such users the disadvantages and drawbacks of other reporting systems, and to make organized efforts to obtain governmental action favorable to the interests of the reporting, CART, and captioning professions.)

Under certain narrow circumstances, such as where rates or charges or any of the other topics listed above are regulated by statute or rule of court, the risks of discussing these topics may not be as great. Because of the magnitude of the risks involved, however, the guidance of the Executive Director and Association legal counsel must be sought in advance before engaging in any such discussions.
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¹ If a discussion should wander into any of these areas, you must stop it at once, and if that proves impossible, you should leave the meeting, inform your staff liaison or Executive Director, and take whatever other steps are needed to make it clear that the discussion was not in any way sanctioned, authorized, or approved by the Association.
² Association-sponsored educational programs limited to the comparative costs of different reporting, CART, captioning, and transcribing equipment or techniques, identification of the various cost items involved in operating a reporting, CART or captioning business, or improved business operating methods and techniques in general, are likely to be routinely cleared provided there is no discussion whatsoever of rates or charges to customers or of formulas, schedules, methods, "rules of thumb," or the like to be used in the determination of such rates or charges. Clearance must still be sought, however, to insure that the line between permissible and impermissible activity is maintained.

 

Assumption of Risk and Waiver of Liability

Attending any in-person committee and/or board meeting may come with risks related to exposure to COVID-19 and other communicable diseases. All attendees voluntarily assume all risks related to such exposure and waive any claims against NCRA should they become sick. All attendees will be expected to review and follow any rules, regulations, or mandates put in place by federal, state, or local authorities and follow any safety conditions or protocols put in place by the venue and/or NCRA.

Confidentiality

All committee members are required to sign a Confidentiality Agreement.

This is not a blanket requirement that all information discussed by a committee must be treated as confidential; rather, this is an affirmative obligation on all committees, task forces, etc., to consider, identify, and define such categories of information likely to come to their attention in the course of conducting their official duties which are legitimately sensitive and must be protected. Any concerns should be raised with the staff liaison or the Executive Director.

I hereby affirm that I will not discuss or in any manner communicate confidential information that I may encounter while transacting business on behalf of the National Court Reporters Association (NCRA) to persons not on this committee unless they are specifically engaged by NCRA to assist with such matters or are current members of the NCRA Board of Directors.

If applicable [testing-related committees]:

Further, I agree not to participate in the development or presentation of any materials, outlines, tests, or courses specifically designed to prepare candidates for any NCRA national certification examination during my term of service and for at least three years after my term of service is concluded. I also agree not to take any test for a period of three years after serving on the committee.
This statement does not preclude the normal faculty activities of academic instruction.

If applicable [committees related to work products produced]:

Further, I understand that any works I may prepare, either by myself or with other members of the Committee, are irrevocably assigned to NCRA and shall remain NCRA’s property. All copyright interests of such works are considered “works made for hire” and are the sole property of NCRA.

 

 

Conflict of Interest Policy & Disclosure Statement

All NCRA Board, committee, or task force members are required to sign a Conflict of Interest Policy and Disclosure Statement.

Conflict of Interest Policy

The legal duty to act in the organization’s best interests

NCRA Directors, Officers, Committee members, staff, and other volunteers face both a legal and an ethical obligation to base their actions and decisions solely on what is in the best interests of NCRA, in accordance with applicable state and federal laws and regulations, and in keeping with best governance practices encouraged by the IRS. Actions should not be influenced by personal considerations. Even the appearance of a conflict of interest must be avoided.

Duality of interests are common and do not necessarily create a conflict

Individuals often have fully legitimate responsibilities to more than one board or organization. Such duality of interests do not necessarily create actual or even perceived conflicts. It is generally only when some specific issue arises in which both organizations have a direct interest that an actual conflict exists.

Curing the conflict

If such a situation develops, a range of actions can be taken to remove the conflict. Often, simple disclosure of the potential conflict, allowing the Board to act in a fully informed and aware manner, is sufficient. Often, the Board or Committee member may be asked to recuse themselves, or not participate in any discussions or actions on the issue for which the conflict exists. Rarely but occasionally, if the conflict is serious enough in nature, the Board or Committee member must be prepared to resign or otherwise remove themselves from the position of decision-making authority with the conflicting interest, if the NCRA Board should determine it is necessary for them to do so.

The Board/Committee, not the individual, determines if a conflict exists, and if so, what action is necessary

It is not for the individual member of a Board or Committee to decide whether a conflict exists. That determination lies with the Board/Committee itself. For the Board or Committee to make such an assessment and exercise its corporate responsibility to avoid conflicts of interest, all of its members must disclose any dualities of interest. This is done annually through the individual’s completion of the attached disclosure form.

If, in the course of the conduct of its business, the Board or Committee enters into discussions that raise a concern for an individual that a duality of interest (whether previously disclosed or not) creates a potential conflict, the individual should immediately disclose (or remind) the Board/Committee leadership of the matter so it can be immediately addressed and resolved.

Actions to cure a potential conflict are not a judgment on the individual

It is important to stress that the existence of a conflict of interest and the actions taken to resolve that conflict are not punitive in nature nor are they in any way a negative reflection on the affected Board or Committee member’s ethics, commitment to NCRA, or personal prudence. It is unrealistic to expect a volunteer leader to have no interests or commitments outside of his or her service on an NCRA Board or Committee. In fact, limiting service to individuals with absolutely no outside interests or experiences would not only be impractical, it would be detrimental to the quality and expertise of the Board or Committee.

Exercising care in disclosing all dualities of interest and abiding by the Board or Committee’s decision on whether a conflict exists and how it should be cured (e.g., fully cooperating in a Board or Committee’s decision that an individual should recuse themselves) is a sign of the highest ethical sensibilities.

Actions such as recusal also are not a reflection on the individual’s ability to act in an objective or impartial manner. The integrity of volunteer leaders is not in question.

However, as US District Court Judge Edward Weinfeld expressed in a November 1982 opinion regarding a judge’s duty to recuse him- or herself, "Despite the Court's subjective view that all matters can be resolved impartially, a judge has an independent duty to disqualify himself 'in any proceeding in which impartiality might reasonably be questioned.'  The issue is not the Court's own introspective capacity to sit in fair and honest judgment ... but whether a reasonable member of the public ... might fairly question the Court's impartiality. This is an objective standard and 'where the question is close, the judge whose impartiality might reasonably be questioned must recuse himself.'"

Conflicts of interest defined

A conflict of interest occurs whenever an individual has a direct or indirect interest, financial or otherwise, in the outcome of any transaction or matter involving NCRA. A conflict of interest also occurs whenever an individual has a relationship with other parties to the transaction or matter such that the relationship might reasonably be expected to affect the judgment of the individual in the particular transaction or matter in a manner adverse to NCRA.

Conflicts of interest are not limited to formal financial partnerships or arrangements. Any management position or leadership role with decision-making authority (whether voluntary or for compensation) with any board, business network, consulting contract, or other business arrangement in the court reporting profession or related professional specialties (e.g., CART, captioning) could potentially give rise to a conflict.

Depending upon the immediacy and seriousness of the conflict, a number of resolutions are possible. If the conflict is minimal, highly qualified, or only potential, it may be cured through nothing more than disclosure of the interest and a pledge to remain objective and neutral to it. Other conflicts are more serious and may require the Board or Committee member to remove him- or herself from any involvement in the Association’s discussions or decision-making on the matter. (This is called recusal.)  In rare cases, conflicts are so immediate and serious that resignation from the Board, Committee, or other Association assignment is the only prudent means of avoiding the conflict.

It is the prerogative of the Board, not the individual, to determine how severe a conflict is and the appropriate steps that must be taken to remedy it.  Accordingly, disclosure of all relationships outside of the individual’s official Association role that could potentially create a conflict is critical to the organization’s effective enforcement of appropriate conflict-of-interest policies.

If an individual has a conflict of interest or potential conflict of interest in connection with any NCRA transaction or matter, he or she should immediately notify the President, Executive Director, or other appropriate NCRA representative and disclose all the material facts concerning the actual or potential conflict of interest and his or her relationship to the transaction or matter at issue.

If the conflict of interest arises in connection with the activities of any deliberative body (e.g., the Board of Directors), the conflict should be disclosed to the other members of the body and the individual ordinarily should not participate in the consideration of the transaction or matter at issue. If the conflict of interest arises in connection with a workshop, seminar, or other such program, the individual may be authorized to participate provided that he or she agrees to disclose to the other participants and attendees the facts giving rise to the conflict and clearly identifies his or her remarks as personal opinion. If the conflict arises in connection with an NCRA publication, the article, book, or other material may be published with an appropriate disclosure to the reader.

The following statement will accompany the policy for signature.

I have read the NCRA Conflict of Interest Statement, and I support its intent.

I hereby certify that, to the best of my knowledge, I do not have any financial or other interest that raises an actual or potential conflict of interest with my activities on behalf of NCRA. If any actual or potential conflict of interest exists, the conflict, as well as the financial or other interest upon which it is based, is described in the written statement I have attached to this form.

By way of example, a financial or other interest that could give rise to a conflict of interest might include an equity or other ownership interest, a paid consulting agreement, or other business arrangement with a vendor associated with the court reporting, CART, or captioning industry. Among other things, this would cover the receipt of consulting or appearance fees, travel expenses, sales commissions, and royalty payments for the sale or licensing of hardware or software technology, etc. Normally, participation in user groups and beta testing (where the equipment is returned) would not be included or require disclosure. However, conflicts of interest are not limited to formal financial partnerships or arrangements. Any management position or leadership role with decision-making authority (whether voluntary or for compensation) with any board, business network, consulting contract, or other business relationship in the court reporting profession or related professional specialties (e.g.; CART, captioning) could potentially give rise to a conflict and should be disclosed.

If an actual or potential conflict of interest subsequently develops, I will promptly submit an amended Disclosure Statement to the Executive Director who will forward it to the NCRA General Counsel or other appropriate NCRA representative.

I understand that it is the prerogative of the Committee, Board, or Task Force upon which I serve to decide how serious and immediate any conflict is and to determine what steps are necessary to cure the conflict. (These cures include disclosure, recusal, and in extreme cases, resignation.)  I agree to abide by the decision of the governing board in any such matter that may arise.

As directed and where appropriate, I will make disclosure of the conflict of interest to NCRA readers, NCRA course participants, or to fellow members of NCRA deliberative bodies.

 

Conflict of Interest for Selection Committees

Introduction

The following policy has been approved by the NCRA Board of Directors to guide the handling of conflicts of interest for award and nominating committees in the selection of awardees/nominees.  This policy applies to all NCRA-selection committees. The Association has similar policies governing other deliberating bodies that provide opportunities, benefits, or awards to others, including procedures that guide the Speed Contest Committee, scholarship selection committees and grant committees. The purpose of these policies is to avert to the extent possible biasing circumstances, or the appearance of biasing circumstances, in the selection of NCRA awardees/nominees.

Selection committee members understand that the issue is not whether they have the ability to act in an objective or impartial manner. The integrity of volunteer leadership is amply evident and their ability to act in a fair and honest manner is not in question. The issue is whether a prior personal or professional relationship might reasonably raise a question in the mind of a member of the general public who does not have access to the full information on the nomination or selection process.  In order to avoid a question denigrating the prestige of the honor being bestowed with the award upon the selected member, NCRA chooses to err on the side of caution in application of these standards.

Ethical Standards

Award/Nominee Eligibility:  Members of award/nomination selection committees are not eligible to be candidates for that award or Board service during their term of service on the award/nominating selection committee.

Required Circumstances:  Biasing or potential biasing relationships for or against a candidate or an award nominee require committee members to withdraw from service on award/nomination selection committees. They include, but are not limited to:

1. family member, spouse, or domestic partner;
2. anyone with whom one has a current business or financial relationship;
3. participating in the selection decision when a person made or advocated the candidate’s current nomination.

Elective Circumstances:  Members of award/nominating committees may for other reasons determine that they have conflicts or potential conflicts that require elimination from service and then act on that determination if they believe that service could affect the fairness of the selection process. However, the individual is obligated to inform the committee so the committee can make the determination.

1. Conflict of interest standards and implementation procedures for award/nominating committee service shall be widely publicized and readily accessible to NCRA members.
2. NCRA Officers and others appointing members of award/nominating selection committees shall make potential committee members aware of these ethical standards and the implementation procedures.
3. Alternates shall be appointed by or readily accessible to those appointing members of selection committees so that substitute appointments can be readily made if any committee member or members need to step down from service.
4. Upon receipt of all nomination forms, committee members need to make known whether they can continue service on the award/nominating committee or whether they are in a circumstance that mandates withdrawal from service.
5. If vacancies occur on award selection committees due to withdrawal of members from service, those vacancies shall be filled promptly by the NCRA President.
6. Any award selection chair or committee member with questions or ambiguous circumstances or who finds the full implementation disruptive shall seek the advice of the Executive Director and CEO who will, where necessary, consult with the President on this policy and its implementation.

 

Guidelines for NCRA Listserv

The National Court Reporters Association (NCRA) is NCRA but fosters a more inclusive and respectful community. In that spirit, NCRA has enacted the following policies that outline the expectations for online conduct and encourages responsible digital citizenship for NCRA listservs, By adhering to this policy, we can collectively work towards creating a more positive and engaging online environment for all. 

To ensure the best possible experience for all listserv participants and to avoid legal liability, participants are asked to observe some basic guidelines for participation.

By using the listservs, you agree that you have read and will follow the rules and guidelines set for these peer discussion groups and engagement platforms. You also agree to reserve discussions for topics best suited to the medium.

Please take a moment to acquaint yourself with these important guidelines. If you have questions about NCRA Listservs, contact the NCRA email list administrator at: listserveadm@ncra.org. In order to preserve a climate that encourages both civil and fruitful dialogue in a lawful manner, NCRA reserves the right to suspend or terminate participation on all lists for members/participants who violate these guidelines based on NCRA’s sole discretion.

 

Guidelines for Listserv Discussions 

Please keep the following guidelines in mind when posting and engaging with others on NCRA Listservs.

• Do not challenge or attack others. The discussions on the listservs are meant to stimulate conversation, not to create contention. Let others have their say, just as you may.
• Promotion of or solicitation for any particular service, product, or person is prohibited on NCRA listsrevs. Commercial messages will be deleted.
• Messages that are inconsistent with NCRA’s mission, such as messages that promote alternative reporting methods over verbatim stenographic reporting technologies, are not allowed on listservs and social media.
• Use caution when discussing products or business practices. Information posted is available for all to see, and comments are subject to libel, slander, and antitrust laws.
• All defamatory, abusive, profane, threatening, offensive, or illegal materials are strictly prohibited.
• Do not degrade others on the basis of gender, race, class, ethnicity, national origin, religion, sexual orientation, disability, or other classifications.
• Please note carefully all items listed in the disclaimer and legal rules below, particularly regarding copyright ownership, defamation, personal privacy rights, and antitrust concerns of information posted to the listserv.

Listserv Etiquette

NCRA Listserv is a medium by which to solicit the advice of your peers, benefit from their experience, and participate in an ongoing conversation. In order to facilitate meaningful and productive discussions, please keep the following Listserv Etiquette in mind:

• Include a signature tag on all messages. Include your full name, affiliation, location, and e-mail address.
• Be sure the subject line clearly and concisely states the actual topic you are addressing. This allows members to respond more appropriately to your posting and makes it easier for members to search the archives by subject. This is particularly important when replying to a listserv posting or when changing the subject. (The subject line: “RE: Listserv Digest for the week of March 3-15, 2024” does not give your readers enough pertinent information when trying to decide whether or not to open and read your post.)
• When responding to a specific post, include enough text from the original message to make it clear exactly what posting it is you are commenting on. If there have been dozens of individual posts on a particular topic, your posting: “The exact same thing happened in Tuscaloosa just last year!” is probably not going to be as informative as you intended.
• But only include the relevant portions of the original message in your reply. If you get your listserv postings in Digest form, people don’t need another copy of all 32 previous comments on the subject in the body or your reply. Cut and paste is a great tool. Feel free to use it.
• Only send a message to the entire list when it contains information that everyone can benefit from. If you want to carry on a private conversation, thank someone for a particularly useful piece of information, or express nothing more than your agreement with their posting, send a separate and private email to that individual, not to the listserv.
• This is the most frequently complained about violation of listserv etiquette, so just to be clear: Send messages such as "thanks for the information" or "me too" to individuals, not to the entire list. Do this by using your email application's forwarding option and typing in or cutting and pasting in the e-mail address of the individual to whom you want to respond.
• Do not forward messages or even segments of messages from the listserv to persons not on the listserv without the express permission of the person you are quoting.
• Do not send administrative messages, such as “remove me from the list,” through the listserv. Instead, click on the unsubscribe link that appears at the bottom of each email on that particular listserv. If you are changing e-mail addresses, send an email to the NCRA Listserv administrator (listserveadm@ncra.org).
• This is a listserv, not an online forum. Once you hit send, your message is delivered into the individual email inboxes of every subscriber on the list. There is no way for NCRA or anyone else to delete a posting after the fact if it is offensive, raises antitrust concerns, or otherwise violates these rules and guidelines. So the burden is on you to be sensitive to the content of what you post.

The Legal Stuff

By posting materials to NCRA Listservs mentioning NCRA or NCRA events/programs you grant to NCRA the nonexclusive, worldwide, transferable right and license to display, copy, publish, distribute, transmit, print, and use such information or other material in any way and in any medium, including, but not limited to, print or electronic form.

Do not post any information or other material subject to copyright or privacy rights without obtaining the appropriate permission. By posting materials, the posting party warrants and represents that he or she owns the copyright with respect to such material or has received permission from the copyright owner, and does not violate any third-party privacy rights.

The listservs are provided as a service of NCRA for its members and the community. The opinions of moderators, posters, and commentators are their own and not necessarily that of NCRA, and NCRA is not responsible for such opinions and information posted.

NCRA disclaims all warranties with regard to information posted on the listserv whether posted by NCRA or any third party. This disclaimer includes all implied warranties of merchantability and fitness. In no event shall NCRA be liable for any special, indirect, or consequential damages or any damages whatsoever resulting from loss of use, data, or profits arising out of or in connection with the use or performance of any information posted on this site.

You are responsible for any consequences resulting from your postings, whether intended or unintended. Because violation of these guidelines may place other members and NCRA at risk of legal claims, NCRA reserves the right to remove postings in violation of these guidelines based on NCRA’s sole discretion.

Basic Antitrust Rules. The lawyers word it this way: Messages should not be posted if they might be construed as encouraging or facilitating members in arriving at any agreement that either expressly or by implication leads to price fixing, a boycott of another's business, or other conduct intended to illegally restrict free trade. Messages that encourage or facilitate an agreement about the following subjects are inappropriate and are strictly prohibited:
• prices;
• boycotts or refusals to do business;
• discounts or terms or conditions of sale;
• salaries;
• profits;
• profit margins or cost data;
• market shares;
• sales territories or markets;
• allocation of customers or territories; or
• selection, rejection, or termination of customers or suppliers;
• staff salaries, titles, assigned duties.

What it means in plain English: Any discussion that might be viewed by enforcement authorities as leading to increased prices, decreased competition, or even minimizing discounts, gifts, or promotions are problematic. Even perfectly innocent discussions asking what fees (amount) reporters charge for particular services, whether they charge for a particular ancillary service or whether it is part of the basic page rate, or comments that just praise or denounce the pricing and business practices of others could be construed as a conversation intended to “encourage” or “facilitate” a conspiracy (agreement) to “fix prices,” encourage a “boycott,” or otherwise “illegally restrict trade.”

Why do we make such a big thing about antitrust compliance?

The penalties for violating federal antitrust laws are severe. The maximum criminal penalty for violating the Sherman Act is $1 million for an individual and from $10 to $100 million for a corporation (including associations). Under sentencing guidelines, alternative maximum fines can be imposed of up to double the monetary gain realized by the offender or twice the loss to another person.

Individuals and corporate officers who are found guilty of price fixing or market allocation will virtually always be sentenced to jail pursuant to federal sentencing guidelines. Community service cannot be used to avoid imprisonment. The minimum recommended sentence is four months; the maximum is three years.

Additionally, there are civil penalties such as injunctions or cease and desist orders which could result in government supervision of association members, restrictions on association activities, or even putting the association out of existence.

Civil suits may be brought by consumers or competitors. Civil antitrust actions result in damage awards and attorneys’ fees. Successful litigants are entitled to triple damages – financial payments of three times the claimed financial harm.

Defending against an alleged antitrust violation is extremely costly, even if you are entirely vindicated in the end. NCRA’s own history proves this point. Twice in the past, NCRA has had to incur extraordinary legal costs and staff time to defend certain practices even though NCRA eventually prevailed.

The first time, the U.S. Federal Trade Commission challenged NCRA’s gift giving prohibition. The FTC argued that the gift prohibition was really just an agreement among competitors not to incur a promotional expense that is common commercial practice – just like if all the airlines got together and decided to stop awarding frequent flyer miles so they could all save money. Although NCRA narrowly prevailed by arguing that gifts by officers of the court trigger unique ethical concerns, the FTC made clear that NCRA cannot discourage volume discounting or restrict other business practices under the guise of ethics. NCRA’s gift giving rules and “Ethics First” program were very narrowly crafted and carefully limited to meet possible DOJ or FTC scrutiny.

The second time, the U.S. Department of Justice investigated the NCRA Constitution and Bylaws prohibition blocking voice writers from becoming NCRA members, which the DOJ characterized as a possible restraint of trade. NCRA prevailed on the basis of our superior technology and the fact that voice writers were not kept from getting business by being barred from NCRA membership. Although cleared, the DOJ indicated that future NCRA actions against competitors utilizing non-stenographic technologies could be subject to further challenge.

Once again, although NCRA prevailed in each of these situations, the costs in terms of time and money were extraordinary. (Legal costs from the most recent DOJ investigation were well into six figures; responding to information and document requests consumed a staff person full time for a period of several weeks and additional staff time for a period of more than half a year. And all of that on a case in which NCRA ultimately won on all counts.)

For these reasons extreme caution must be exercised on the listserv to avoid further antitrust challenges.

Finally, care must be exercised not to rely too much on the so-called Noerr-Pennington doctrine. This doctrine provides some measure of protection for discussions or actions relating to matters that are controlled by government regulations or actions, such as official page rates for court transcripts. However, such protection may not extend to discussions and collusion about charges for ancillary services that are not regulated.

The Noerr-Pennington doctrine can be utilized to protect lobbying communications and litigation positions taken in good faith, but this immunity does not extend to discussions about the pros and cons of the underlying business practices or to sharing information that is otherwise prohibited. So, while it is appropriate to share public filings and lobbying positions on a listserv and even to accurately summarize in an impartial manner the allegations in a lawsuit, participants may not use the circulation of a public document as a pretext to discuss or share information about their individual business practices or to suggest how others should conduct their business. (When circulating public documents from legal proceedings, care must also be taken to accurately describe claims still under adjudication as allegations, not proven facts.)

Tough Action by Antitrust Regulators. In the not too distant past, antitrust regulators have taken a strong stance against what they consider to be anticompetitive activities conducted under an association umbrella. In 2009, for example, FTC enforcement action came down even harder and more explicitly than prior rulings. The FTC required the National Association of Music Manufacturers to enter into a Consent Agreement and implement an onerous and costly antitrust compliance program that severely curtailed the association’s services and operations even though there was no evidence that the membership’s discussion ever actually resulted in any agreement or impact on prices. Essentially, the FTC stated that, as a matter of law, mere exchanges of information within a profession on pricing, pricing strategies, restrictions on advertising, and maintaining the profitability of a profession or industry serve no appropriate, legitimate, defensible or beneficial public purpose, and should be prohibited. This suggests that we can always expect stringent and aggressive enforcement, so NCRA and its members must conduct ourselves on the listserv and otherwise in a manner that will withstand such scrutiny.

Antitrust restrictions and concerns are not unique to court reporting. These same rules and these same concerns apply to all trade associations and professional societies, large and small. The federal government has brought civil or criminal actions against national, state and even local organizations. Enforcement actions have been taken against barbers, farmers, musical instrument sellers, pharmacists, audiovisual companies, and the list goes on. The exposure to legal liability exists on any website or online forum that permits such discussions to go on, whether the list managers are aware of them or not.

Final Warning. Just one more time for emphasis: It is the strong position of antitrust regulators that it is illegal for competitors (such as the NCRA membership) to talk about raising prices, maintaining current prices, or even about minimizing discounts, gifts, or promotions. Under the antitrust laws, such discussions and any resulting collective actions are viewed as hurting consumers because they cause prices to be higher, for services to be more restricted, and/or for discounts, gifts, and promotions to be more limited than if the discussions and collective actions never occurred. The fact that the competitors who engage in these discussions genuinely feel they need to do so in order to protect their incomes or even to preserve their profession is no defense. It just reinforces the view of antitrust regulators that these discussions and collective actions are driven by economic and profit motives, rather than concerns for the public welfare and are illegal.

For this reason professional associations like NCRA and its members are well advised to avoid any semblance of activity which might lead to the belief that the association members had agreed, even informally, to something that could have an effect on prices, fees, or competition

So beware. Take the dangers in engaging in such discussions seriously!

Conclusion

NCRA wants its forums and listserv communities to be a safe and pleasant place for reporters to engage in dialogue. Please be sensitive to these concerns and understanding when a gentle reminder gets posted suggesting that a certain line of discussion be dropped. But also be aware that, if all else fails, NCRA reserves the right to terminate access to any user who does not abide by these guidelines — for their own good and for the good of other listserv community participants and NCRA itself.

Illegal Amendments

Proposed Constitution and Bylaws amendments which are deemed illegal by General Counsel shall not be published to the membership.

Ownership of Materials and Information

Any material or information that may be created, prepared or modified, in my capacity as a Committee or Board member either by myself or with other members of the Committee (Works) are “works made for hire” and are the sole property of NCRA and, therefore, NCRA shall own all right, title and interest in and to the Works, including the entire and exclusive copyrights in the Works.

It is agreed to assign to NCRA ownership of all right, title and interest therein, including but not limited to the entire copyright in the Works. It is agreed to execute all documents, take all actions, and provide assistance as reasonably requested by NCRA to perfect its ownership of the entire copyright to said Works.

Said Works are a joint effort, authorized by Board, supported by staff, engaged in by committee, and are not the province, point of origin, ownership, or credit, of any one person.

If applicable [testing-related committees]: Further, I agree not to participate in the development or presentation of any materials, outlines, tests, or courses specifically designed to prepare candidates for any NCRA national certification examination during my term of service and for at least three years after my term of service is concluded. I also agree not to take any test for a period of three years after serving on the committee.

This statement does not preclude the normal faculty activities of academic instruction .

 

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