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Publication Title

Washington University Law Quarterly

Abstract

The paramount antitrust challenge for nonprofit product certification programs is to demonstrate aggressively that such programs strengthen the competitive market system on an industry-wide basis. This affirmative challenge is, however, limited by another urgent antitrust challenge still closer to the courtroom door. This challenge, requiring advance organizational and litigation planning, is to avoid or defeat a possible plaintiff's claim of antitrust abuses by a certification organization whose decision-making participants may be caught in alleged conflicts of interest. These two challenges must be met for certification programs to survive and progress. The only way successfully to meet these antitrust challenges is to make product performance certification programs synonymous with industry-wide competition and productivity and with systems of safeguards against conflicts of interest. Further, this must be proved to the judge and jury. This Commentary will discuss two critical questions that flow from an analytical approach to these two challenges: First, whether a coherent basis exists for viewing nonprofit certification programs as structural elements in the marketplace hierarchy that advance urgent antitrust goals, including increased competition and productivity; and second, whether a distinct duty to safeguard certification organizations against conflicts of interest would, if met, demonstrate that a certification organization under antitrust scrutiny in court should be found to be without conspiratorial intent.

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