ETHICS IN VOLUNTARY STANDARDSETTING

1
ETHICS IN VOLUNTARY STANDARD-SETTING

• Columbus School of Law
• Catholic University
• October 25,1999
• Stephen P. Murphy
• REED SMITH SHAW McCLAY LLP

2
A Legal Overview

• Manipulation Of Standard-setting Can Have Harsh
  Economic Impact
  
• Voluntary Associations Are Not Exempt From
  Liability
  
• Strict Adherence to Due Process Procedures and
  Ethical Guidelines Can Provide Defenses

3
Manipulation Impact- Case 1

• Allied Tube Conduit v. Indian Head, 486 U.S.
  492 (1988) -
  
• PVC conduit blackballed from National
  Electrical Code by steel pipe
  
• NFPA lacked procedures to prevent block voting

4
Manipulation Impact- Case 2

• ASME v. Hydrolevel Corp., 456 U.S. 556 (1982)
• Boiler control interpreted out of existence
• Powerful companies maintained excessive control
  of code interpretations
  
• No due process to protect integrity of standards
  process

5
No Liability Exemption

• Adoption of Standard Does Not Give Noerr
  Protection
  
• Nonprofit Status of Association Does Not
  Foreclose Liability
  
• Lack of Benefit From Members Improper Conduct
  Irrelevant
  
• Antitrust Treble Damages Permitted

6
Proper Due Process Can Protect Innocent
Associations

• Allieds compliance with weak NFPA voting rule
  insufficient
  
• Associations must enact and enforce fair
  processes and guidelines
  
• Only full and open public access to the
  standard-setting process can guard against abuses