OPNFV Antitrust Policy
As adopted 19 September 2014
The mission of the Open Platform for NFV Project, Inc. (“OPNFV”) is to drive the evolution of Network Function Virtualization by developing, maintaining and promoting an integrated and tested open software platform capable of providing such functionality (“Platform”). Such Platform shall be efficient and promote innovation by eliminating duplicative R&D efforts, attaining economies of scale, and enabling synergies between developers. The purpose of this Antitrust Policy (the “Policy”) is to avoid antitrust risks in carrying out the OPNFV’s procompetitive mission.
It is OPNFV’s policy to comply with all applicable antitrust/competition laws, including state and federal antitrust and trade regulation laws in the U.S., as well as applicable antitrust/competition laws of other countries (collectively, the “Antitrust Laws”). The penalties for violating the Antitrust Laws can be severe, including treble damages in the U.S., and large fines and imprisonment of individuals found guilty of illegal conduct in the U.S. and other countries. The U.S. Supreme Court has ruled that a trade association may be held legally responsible for the unauthorized, as well as authorized, illegal acts of its members.
OPNFV will comply in all respects with the Antitrust Laws. In addition, all members of OPNFV (collectively, “members”) must likewise comply in all respects with the Antitrust Laws and this Policy in carrying out OPNFV-related activities, as must all non-members who participate in such activities, whether directly or indirectly, including without limitation, participants in OPNFV’s projects, committees and advisory councils (if any), and OPNFV’s employees, consultants, directors and officers (all such non-member participants, “participants”).
The main goal of the Antitrust Laws is to safeguard vigorous competition. Nothing in this Policy, or in any other OPNFV document or policy, prohibits or limits the ability of OPNFV members or participants to make, sell or use any product, or otherwise to compete between them or with non-OPNFV members in the marketplace. While this Policy provides general guidance on compliance with Antitrust Law, Members and participants should contact their respective legal counsel to address specific questions.
This Policy is conservative and is intended to promote compliance with the Antitrust Laws, not to create duties or obligations beyond what the Antitrust Laws actually require. In the event of any inconsistency between this Policy and the Antitrust Laws, the Antitrust Laws preempt and control.
This Policy shall be provided to all members and participants in OPNFV.
The following policies address three areas in which the Antitrust Laws are particularly concerned: Membership; Conduct of Meetings; and Platform/Requirements.
OPNFV membership shall be made available on reasonable terms to all individuals and entities meeting the qualifications established by OPNFV for membership, as set forth in OPNFV’s bylaws. No applicant for membership who meets the membership criteria shall be rejected for any anti-competitive purpose or solely for the purpose of denying the applicant the benefits of membership.
Any final OPNFV information, materials, or reports available to members shall be made available to non-members on reasonable terms, if and when OPNFV concludes that failure to make them available will impose a significant economic or competitive disadvantage or cost to non-members.
Conduct of Meetings.
At meetings among actual or potential competitors, there is a risk that participants in those meetings may improperly disclose or discuss information in violation of the Antitrust Laws, or otherwise act in an illegal anti-competitive manner. To avoid this risk, OPNFV members and participants must adhere to the following policies when participating in OPNFV-related or sponsored meetings, conference calls, or other forums for the exchange of information:
OPNFV members and participants must not, in fact or appearance, discuss or exchange verbal or written information regarding:
- An individual company’s current or projected prices, price changes, price differentials, markups, discounts, allowances, price/benefit analyses, terms and conditions of sale, including credit terms, etc., or data that bear on prices, including profits, margins or cost.
- Pricing policies, price levels, price changes, differentials, or the like.
- Actual or projected changes in production, output, capacity or inventories.
- Matters relating to bids or intentions to bid for particular products, procedures for responding to bid invitations or specific contractual arrangements.
- Plans concerning research or development, or the design, characteristics, production, distribution, marketing or introduction dates of particular products, including proposed territories or customers.
- Matters relating to actual or potential individual suppliers that might have the effect of excluding them from any market or of influencing (favorably or unfavorably) the business conduct of firms toward such suppliers.
- Matters relating to actual or potential customers that might have the effect of influencing (favorably or unfavorably) the business conduct of firms toward such customers.
- Current or projected costs of procurement, development or manufacture of any product.
- Market shares for any product or for all products.
- Confidential or otherwise sensitive business plans or strategy.
In connection with all OPNFV-related meetings, conference calls, or other forums for the exchange of information, members, potential members, speakers and other participants must do the following:
- Understand the purposes and authority of each OPNFV committee, project, committee, advisory councils (if any), or other group in which they participate.
- Consult with their respective counsel on all Antitrust Law questions related to OPNFV meetings, including, where appropriate, requesting legal review of agendas and written information intended for distribution.
- Protest against any discussions that appear to violate this Policy or the Antitrust Laws, leave any meeting in which such discussions continue, and either insist that such protest be noted in the minutes, if occurring during a meeting, or make such protest known to the Legal Counsel of OPNFV (see Contact Information, below).
OPNFV and its projects will create the Platform, and may also establish standards, technical requirements and/or specifications for OPNFV software (collectively, “Requirement(s)”). The use of any version of the Platform and adoption of any such Requirements shall in all cases be voluntary. Members and participants shall not enter into agreements that prohibit or restrict any member or non-member from using any alternatives to the Platform, or from establishing or adopting any other Requirements. Members and participants shall not undertake any efforts, directly or indirectly, to prevent any firm from using any alternative to the Platform, or from manufacturing, selling, or supplying any product not conforming to a Requirement.
Parties who may be affected by a Requirement developed by an OPNFV project shall be given the opportunity to comment on the development of any such Requirement, regardless of whether they are members of OPNFV. OPNFV will publish all proposed Requirements on a publicly available web page of the OPNFV website for a reasonable period of time prior to formal adoption, and shall consider comments to those proposed Requirements prior to adopting a final requirement.
OPNFV projects shall develop and select Requirements based on their quality, technological attributes and ability to address the needs of OPNFV users. OPNFV projects shall not promote standardization of commercial terms, such as terms for sale for software.
All participants in OPNFV projects and committees shall abide by all applicable rules, policies and procedures adopted by OPNFV or the applicable committee or project, as updated from time to time (collectively “OPNFV Policies”).
OPNFV’s policy is to discuss thoroughly with legal counsel any proposed programs or policy decisions before they are implemented. If any member or participant has any question as to the legality of a proposed course of action, the matter should be immediately referred to the OPNFV corporate counsel Andrew Updegrove, at firstname.lastname@example.org. In this manner, OPNFV can ensure continued pursuit of its legitimate objectives with maximum protection for members and participants.
To contact OPNFV regarding matters addressed by this Policy, please send an email to email@example.com, and reference “OPNFV Antitrust Policy” in the subject line.
Antitrust Compliance Checklist
The following checklist outlines several basic practices intended to minimize the chance that those participating in Open Platform for NFV Project, Inc. (“OPNFV”) activities will violate applicable antitrust and competition laws. This Checklist should be read in conjunction with the OPNFV Antitrust Policy, and is to be used by all persons conducting in-person, telephonic, or Web-based meetings, and by all those responsible for maintaining listserv discussions.
1. Always conduct OPNFV activities as if they were in the public view. Avoid even the appearance of impropriety.
2. Do not allow participants to discuss (even in jest) or exchange information that is prohibited by the Antitrust Policy.
3. Always prepare an agenda for every meeting, and then conduct that meeting in accordance with the agenda.
4. Promptly prepare, or assign someone to prepare, meeting minutes following each meeting so that those participating at the meeting may provide comments and ensure that the minutes are accurate and complete. Always post copies of minutes to a public forum for comments such as the mailing list, wiki or other online storage. If you would like the minutes to be reviewed by OPNFV legal counsel prior to posting for comments, please send them to Andy Updegrove.
5. At the beginning of each in-person, telephonic and Web-based meeting, the following statement must be read or displayed:
OPNFV meetings involve participation by industry competitors, and it is the intention of OPNFV to conduct all of its activities in accordance with applicable antitrust and competition laws. It is therefore extremely important that attendees adhere to meeting agendas, and be aware of and not participate in any activities that are prohibited under applicable U.S. state, federal or foreign antitrust and competition laws. Examples of types of actions that are prohibited at OPNFV meetings and in connection with OPNFV activities are described in the OPNFV Antitrust Policy. If you have questions about these matters, please contact your company counsel, or if you are a member of OPNFV, feel free to contact Lee Gesmer or Andrew Updegrove, of the firm of Gesmer Updegrove LLP, which provides legal counsel to OPNVF.
6. If at any time during the conduct of a meeting you believe that any participant has brought up a topic or is sharing information that is not permitted under the Antitrust Policy, it is your responsibility to interrupt and remind the speaker that such behavior is not permitted. If the speaker persists, you must ask the speaker to leave the meeting (or, at the discretion of the Chair of the meeting, the meeting shall be terminated or adjourned to a later time or date). You must also report the incident to Mike Dolan, Andy Updegrove or the Executive Director, if and when there is one.
7. While you are expected to thoroughly understand the Antitrust Policy and this checklist, you are not expected to be a legal expert. When in doubt, contact Mike Dolan, Andy Updegrove or the Executive Director, if and when there is one.