The West Virginia Oil and Natural Gas Association ("WVONGA") serves the entire natural gas industry in the State of West Virginia, including organizations involved in drilling, completing and producing wells; gathering, processing, transporting, storing and distributing natural gas; and, numerous ancillary activities, including right of way acquisition, engineering design and construction and environmental services. WVONGA member companies have a cumulative investment of nearly ten billion dollars throughout the State, accounts for 80% of the State’s oil and natural gas production, operates more than 20,000 miles of pipeline, and provides product to more than 300,000 West Virginia homes and businesses. As one of the largest and oldest trade association in West Virginia, the purpose of WVONGA is to promote the responsible development of natural gas markets, supply, and transportation infrastructure through its growing and diverse membership in the Mountain State. By definition, therefore, WVONGA is an organization of competitors and as such, there are inherent antitrust implications in its operations and actions.
The Board of Directors (the "Board") has adopted the following Antitrust Compliance Guidelines (the "Guidelines") to provide guidance to its officers, employees, and members when faced with potential antitrust issues. The Board does not intend for the Guidelines to be a substitute for legal advice that WVONGA directors, officers, employees or members may receive from their own legal counsel. These Guidelines are also not intended to be a wholesale review of all antitrust-related issues that may arise in the operations and activities of WVONGA or its individual members.
Applicable antitrust laws. WVONGA is subject to both federal and state antitrust laws. The two most important federal laws are the Sherman Act and the Federal Trade Commission Act. The West Virginia Antitrust Act has been codified as West Virginia Code §47-18-1 et seq.
The Sherman Act prohibits contracts, combinations or conspiracies that result in the restraint of trade. The Federal Trade Commission Act prohibits unfair methods of competition and unfair or deceptive acts or practices, in or affecting commerce. The federal statutes provide for criminal penalties that can result in fines for WVONGA, its directors, officers, employees and its members, jail sentences for individuals who participated in the violation of the laws, or court orders dissolving the association, among other things.
Compliance. WVONGA is committed to the principle of competition served by the antitrust laws, and good business judgment demands that, in all WVONGA activities, each director, officer, employee and member is responsible for following these Guidelines and ensuring that the Guidelines are known and adhered to in the course of activities pursued in the course of their employment or membership in WVONGA. These Guidelines apply equally to social gatherings incidental to WVONGA-sponsored meetings or events.
WVONGA requires strict compliance with federal and state antitrust and trade regulation laws and will not become involved in the competitive business decisions of its individual members. WVONGA will not take any action that would result in a restraint on competition or trade.
Prohibited discussions. WVONGA directors, officers, employees, and members should avoid discussing the following subjects when they are together at formal WVONGA membership meetings, Board meetings, committee meetings, or other WVONGA- sponsored meetings or events, unless such discussions are reviewed and approved by the WVONGA Legal Committee:
- Standardization or stabilization of prices;
- Market shares or market positions of competitors;
- Fees, prices, production, sales, bids, cash discounts, warranties, costs, customer credit or other contract provisions or business practices;
- Division of customers, territories or markets;
- Individual customers or suppliers;
- Boycotting any person or business;
- Membership restrictions, standard-setting, certification, accreditation or self- regulation programs;
- Taxes, rates, or other fees, except for those in a regulated environment, that could have the potential to affect prices;
- Salaries, benefits, non-solicitation and non-compete agreements; and
- Other non-public information such as strategic plans, including plans relating to production, turnarounds, rationalization, or shutdowns.
Legislative activities. Certain legislative actions undertaken by WVONGA and its members are immune from liability under the antitrust laws. For example, the Noerr- Pennington Doctrine provides that "petitioning" conduct by individuals or associations is immune from liability under federal antitrust laws and certain protections are provided to petitioners who request a government decision maker to exercise its discretion in a certain way. Generally speaking, the Noerr-Pennington Doctrine protects the effort of WVONGA and its members to influence the exercise of governmental power through legislation, regulation or the courts, and does not create a liability under the federal antitrust laws, even if such petitioning results in gaining an anti-competitive advantage over a competitor or another industry. WVONGA directors, officers, employees, and members should not, however, engage in any of the following types of conduct because they are not protected by the Noerr-Pennington Doctrine:
- Engaging in litigation or petitioning solely for the purpose of using the process to harm, delay, or obstruct a competitor;
- Making misrepresentations and omissions in an adjudicatory context;
- Price-fixing, customer or market allocation, and other anticompetitive agreements, even if made in the course of engaging in immune petitioning activity;
- Submitting informational filings with federal agencies that seek only a ministerial response, such as tariffs and collective rate filings; or
Legal guidance. By their nature, federal and state antitrust and trade regulation laws are often unclear. If any WVONGA director, officer, employee, or member is concerned about an activity or discussion potentially being in violation of such laws, it should state so on the record immediately and consult with the WVONGA Legal Committee or its own legal counsel. The Board or WVONGA staff shall consult with the WVONGA Legal Committee when they have questions regarding the application of antitrust laws to WVONGA activities. If requested, representatives of the WVONGA Legal Committee shall be present at meetings of the Board and shall review and approve the agenda and meeting minutes prior to distribution to WVONGA members.
Reporting violations; suspension. WVONGA directors, officers, employees, and members have an obligation to terminate on the record any discussion, seek legal counsel's advice and, if necessary, terminate any meeting if the discussion raises any antitrust issues. All members or employees are obligated to report any known violations of these Guidelines or applicable antitrust and trade regulation laws to the legal counsel for WVONGA. Any violation of these Guidelines or applicable antitrust and trade regulation law may result in disciplinary action up to suspension of the membership of the violator’s membership, barring the individual from participation in WVONGA calls, meetings, etc. or termination of employment with WVONGA.
Meetings and agendas. All WVONGA meetings shall be announced on the website and distributed by a notification method that has been previously agreed to by the Board. All WVONGA meetings shall have agendas circulated in advance and minutes properly reflecting the discussions and actions taken at such meeting. Each agenda and minutes shall include the WVONGA Notice of Antitrust Compliance below.
Authors, speakers, and presentations. Authors of papers and speakers or presenters at WVONGA-sponsored events and conferences shall be informed of these Guidelines and the need to comply therewith in the preparation and presentation of their papers or speeches.
Notice of Antitrust Compliance. The following statement shall be included on the WVONGA website, committee meeting rosters or agendas, minutes, note statements and other documents reflecting WVONGA operations or activities:
WVONGA Antitrust and Compliance Statement
WVONGA conducts all of its business, meetings and other affairs in strict compliance with the applicable antitrust and trade regulation laws. It is the responsibility of every WVONGA officer, director, employee, member and company representative to (i) be guided by the WVONGA Antitrust Compliance Guidelines for strict compliance with the antitrust and trade regulation laws in all WVONGA and industry-related meetings, events, andactivities, (ii) avoid discussions and actions which may be construed in any way to restrict competition, fix prices, or boycott, and (iii) report any known violations of the WVONGA Antitrust Compliance Guidelines or applicable antitrust and trade regulation laws to the Chair (or Vice Chair) of the Board and the Chair (or Vice Chair) of the Legal Committee.
Optional Attendance Sheet and Antitrust Declaration
WVONGA conducts all of its business, meetings and other affairs in strict compliance with the applicable antitrust and trade regulation laws. It is the responsibility of every WVONGA officer, director, employee, member and company representative to (i) be guided by the WVONGA Antitrust Compliance Guidelines for strict compliance with the antitrust and trade regulation laws in all WVONGA and industry-related meetings, events, and activities; (ii) avoid discussions and actions which may be construed in any way to restrict competition, fix prices, or boycott; and (iii) report any known violations of the WVONGA Antitrust Compliance Guidelines or applicable antitrust and trade regulation laws to the Chair (or Vice Chair) of the Board and the Chair (or Vice Chair) of the Legal Committee.
By signing this attendance sheet, the signor acknowledges that the participant has read and fully understands the duties and responsibilities outlined in the Guidelines. A copy of the Guidelines can be found on the WVONGA website.
(Approved by WVONGA’s Board of Directors – 6/4/20)