The Texas Mortgage Bankers Association is a not-for-profit organization. The association is not organized to — and may not — play any role in the competitive decisions of its members or their employees, nor in any way restrict competition among members or potential members. Rather, it serves as a forum for free and open discussion of diverse opinions without attempting to encourage or sanction any particular business practice.
The association provides a forum for the exchange of ideas in a variety of settings including its annual meeting, educational programs, committee meetings, and Board meetings. The Board of Directors recognizes the possibility that the Association and its activities could be viewed by some as an opportunity for anti-competitive conduct. Therefore, this policy statement clearly and unequivocally supports the policy of competition served by the antitrust laws and communicates the Association's uncompromising policy to comply strictly in all respects with those laws.
While recognizing the importance of the principle of competition served by the antitrust laws, the Association also recognizes the severity of potential penalties that might be imposed on the Association and its members if certain conduct is found to violate those laws. Antitrust violations can carry both civil and criminal penalties — including imprisonment for up to 3 years, fines up to $350,000 for individuals, fines up to $10,000,000 for the Association, and attorneys' fees. Damage claims awarded to private parties in civil suits are tripled for antitrust violations. Given the severity of such penalties, the Board intends to take all necessary and proper measures to ensure that violations of the antitrust laws do not occur.
Operating principles
To ensure compliance with antitrust laws, TMBA observes the following principles:
- 01TMBA and any committee, section, chapter, or activity shall not be used to bring about any understanding or agreement — written or oral, formal or informal, expressed or implied — among two or more members or competitors regarding prices or terms and conditions of contracts for services or products. Discussions and exchanges of information about such topics will not be permitted at Association meetings or activities.
- 02There will be no discussions discouraging or withholding patronage or services from, or encouraging exclusive dealing with, any supplier, purchaser, actual or potential competitor, or any private or governmental entity.
- 03There will be no discussions about allocating or dividing geographic or service markets or customers.
- 04There will be no discussions about restricting, limiting, prohibiting, or sanctioning advertising or solicitation — unless those discussions pertain to advertising or solicitations that are false, misleading, deceptive, or directly competitive with Association products or services.
- 05There will be no discussions about discouraging entry into or competition in any segment of the marketplace.
- 06There will be no discussions about whether the practices of any member, actual or potential competitor, or other person are unethical or anti-competitive — unless the discussions or complaints follow the prescribed due-process provisions of the Association's bylaws.
Noerr-Pennington Doctrine
Certain activities of the Association and its members are deemed protected from antitrust laws under the First Amendment right to petition government. The antitrust exemption for these activities — referred to as the Noerr-Pennington Doctrine — protects ethical and proper actions or discussions by members designed to influence:
- Legislation at the national, state, or local level;
- Regulatory or policy-making activities (as opposed to commercial activities) of a governmental body; or
- Decisions of judicial bodies.
However, the exemption does not protect actions constituting a "sham" to cover anti-competitive conduct.
Meetings & speakers
Speakers at committees, educational meetings, or other business meetings of the Association shall be informed that they must comply with the Association's antitrust policy in preparing and presenting their remarks. Meetings will follow a written agenda approved in advance by the Association or its legal counsel.
Minutes will be prepared after each meeting to provide a concise summary of important matters discussed and actions taken or conclusions reached. At informal discussions at the site of any Association meeting, all participants are expected to observe the same standards of personal conduct required of the Association in its compliance.
Antitrust Statement
The complete statement as adopted by the TMBA Board of Directors.
Download (PDF) →Members concerned about a potential antitrust issue should consult their own counsel and contact TMBA General Counsel.
Meredyth Fowler, General Counsel