Avoid Specifics When Gathering, Publishing Surcharge Information
Jul 1, 2001 12:00 PM
STAY AWAY from specifics when gathering and publishing fuel and insurance surcharges information was the advice given to members of the National Tank Truck Carriers (NTTC) during the organization's annual meeting May 6-8 in Boston, Massachusetts.
“The gathering isn't the problem — the sharing of information is the problem,” said Edward Kiley, attorney with Grove, Jaskiewicz and Cobert, Washington DC. “It is our opinion that NTTC may gather such information submitted voluntarily by member carriers, and disseminate such data, either on a carrier-specific basis or in a consolidated format, without violating applicable federal antitrust or regulatory statutes, provided that the material shared does not include specific surcharges being assessed by specific carriers on specific shippers.”
“This opinion is the same whether the data is submitted for common or contract operations. However, we caution that many transportation contracts contain confidentiality provisions that could be breached if this type of data were disclosed by the carrier and published on a carrier-specific basis.”
NTTC could make blind lists or compile the information by regions. Various percentages could be published, but not if the list includes the name of the customer, he said.
“The courts look at the effect of the activity to determine price fixing,” he said. At the same time, he pointed out that no actions are risk-free. He suggested that NTTC obtain a review from the Justice Department of any proposal they plan to undertake.
On a related topic, Kiley pointed out that shipper contracts often contain clauses that authorize disclosure of carrier information while preventing carriers from disclosing information about the shipper.
“The law protects the shipper,” he said.
He advised carriers to add their own information dissemination restriction to the contract to guarantee their information will not be disclosed.
He advised the carriers to seek counsel from an attorney before signing a contract. He also recommended carriers check with their insurance agent before signing a contract. In some instances, entering into certain kinds of contracts that seek to limit liability could void or reduce insurance coverage.
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