Janet from Avid Bookshop posed a great question concerning antitrust rules. We think this is a question or concern to a great many booksellers.
We consulted with the ABA's general counsel and others concerning the ABA’s antitrust statement and whether it was still “accurate” and “current.” They assured us that ABA's antitrust statement is still an important and necessary part of every ABA event and meeting. It protects the ABA and its members and mitigates the risk of liability. As I mentioned during Town Hall, it’s not about the market share, it’s more about collusion. A potential violation could arise out of something as simple as a bookseller standing up at Town Hall and stating that they think everyone should boycott an entity. If some booksellers act on that idea, everyone could be implicated. In some situations, this could mean jail.
Obviously, ABA doesn’t control its members and we cannot oblige you to follow the statement outside of our events or in the ordinary course of your business. We would recommend you seek counsel though if you’re thinking about doing something that conflicts with the ABA’s statement since this statement is a good guide and this is a complicated issue.
Related to this, some stores may wonder if they can compare employee wages and pay scales. The risk is that stores may agree on pay scales for various positions, directly or indirectly. Recently, the Department of Justice has been pursuing criminal cases against employers that agree on wages and benefits. Agreements of this kind can be violations of the Sherman Act, and they can be illegal regardless of the size of the stores involved. (Note: Employees are allowed to discuss wages under the National Labor Relations Act.)
Janet asked a great question at Town Hall that I know many members have. Hopefully, this answered the question. I have follow-up questions though:
What is it that people want to discuss that is being limited by this antitrust statement? And what do people feel could be achieved if this limitation is lifted?
I think the frustration and valid concern lies in bookstores not knowing their value in the marketplace and what they can ask for and/or negotiate for. The assumption is that the only way to figure that out is by everyone sharing information. There's a risk to sharing that information directly though, and direct sharing is not the only way to be informed. This is exactly why you need a trade association. ABACUS is a tool to obtain a good deal of this information. ABA education can answer some of the questions you may have about benchmarking, like what's going on in the marketplace. Stores can email ABA to ask questions about discounts. As a trade association, we can collect this information, aggregate, anonymize it, and share it with members. (We do have to follow strict protocols though.)
These are some of the ways we can help members with this challenge. If you have questions or need support, email email@example.com. And please participate in ABACUS! The deadline has been extended to August 10th, and ABA CFO PK Sindwani will be hosting a special ABACUS Q&A webinar to help you jump start your submission by providing line-by-line instructions on filling out the ABACUS questionnaire.
—Allison Hill, ABA CEO