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CHAPTER IX
PARTICIPATION IN TRADE ASSOCIATIONS AND
PROFESSIONAL SOCIETIES
For antitrust compliance purposes, the functions performed by
insurance industry trade associations and professional societies can be
divided into two categories: (1) lobbying a nd advocacy, tha t is,
representing the interests of insurers in legislative, judicial, and regulatory
proceedings; and (2) other activities that do not directly or indirectly
involve governmental decisionmaking, such as dissemination of
information by means of surveys or reports, professional education,
creation of codes of ethics and professional discipline, public relations, and
standard setting.
The first category of conduct is analytically distinct from the second
because petitioning the government, with certain important exceptions,
qualifies for Noerr-Pennington immunity from the antitrust laws.
Activities that do not entail the influencing of governmental decisions have
no Noerr immunity and, absent the McCarran-Ferguson Act immunity,
will be fully subject to the antitrust laws.
These two categories of trade association activities are separately
analyzed below.
A. Petitioning Activities
1. Overview
Under the Noerr-Pennington doctrine, conduct designed to influence
government action is exempt from the antitrust laws subject to some
important exceptions. Noerr immunity is based on (1) the First
Amendment right to petition the government, and (2) judicial
interpretation of the antitrust laws, finding them inapplicable to restraints
of trade proximately caused by governmental action, even if induced by
private parties.
The Noerr doctrine protects efforts to secure action by all three
branches of government: legislative, executive, and judicial. The doctrine
originated in the Supreme Court’s decision in Eastern Railroad Presidents
