Antitrust Compliance Policy
GREIF PAPER PACKAGING AND LAND MANAGEMENT
As an employee of Greif, Inc. or its subsidiaries (“Greif”), you are subject to Greif’s Code of Business Conduct and Ethics.Among other matters, the Code requires that all employees “Comply with all laws, rules and regulations”.While all laws are important, the United States laws relating to antitrust, and in particular price-fixing, merit particular attention given the history of the paper and timber industries and the consequences of violations.Always remember that violations of Greif policy and the law can subject you and the Company to severe criminal penalties and monetary damages. It is each employee’s responsibility to know and understand the legal requirements applicable to his or her job.
The U.S. Department of Justice has been vigilant in investigating and charging companies with antitrust crimes.These cases have shown that the alleged actions of a few individuals can have a dramatic adverse effect on their employer company and other companies in the industry.It is therefore in the interest of Greif to adopt effective antitrust compliance practices.
The concepts set out in this Policy are generally stricter than what is required by law.This is in recognition of the fact that antitrust investigations and lawsuits, even if without merit, are often brought on mere appearances of impropriety, and are extraordinarily expensive, time-consuming, and disruptive.Since these Guidelines are necessarily general in nature and cannot address in detail every situation that may arise, consultation with the Greif Legal Department is strongly recommended when analyzing specific issues and circumstances.
I. Public Communications
Some public communications by companies, in press releases, on web sites or otherwise, have the potential to be challenged as improper communications between competitors.It is therefore important when making such statements to consider whether the language used or the information conveyed could be characterized as “signaling” or an “invitation to collude.”Particular care should be taken when making announcements concerning competitively sensitive matters such as price changes and downtime.
To minimize the risk of antitrust investigations and litigation and the allegation of inappropriate competitor communications, take the following precautions.Deviations from these precautions may be appropriate in particular situations after review and approval by the Greif Legal Department.
A. Price Announcements
- Public announcements of price increases or decreases may be made only after affected customers have been notified and only if the public announcement is approved by Greif’s General Counsel and Vice President of Communications.Only Greif’s Vice President of Communications may issue public announcements.
- Price announcements should be made no farther in advance than is reasonably necessary for customers to plan for the increase and/or to notify their customers. A practice of making price announcements with a lead time of more than 30 to 60 days may be characterized as providing “negotiation time” for reaching consensus with competitors about price levels and should be reviewed by the Greif Legal Department.
- If you wish to respond to media inquiries, do so only after decisions have been finalized and announcements to customers have been completed.(For example, if a trade publication calls asking if you have announced a price increase, respond only if your announcement to your customers has been completed, and then only confirm what you have done (“we have made an announcement of “X” to our customers”).In addition, Greif’s Vice President of Communications must be consulted in all cases.
- As with media inquiries, respond to equity and other analyst inquiries only after decisions have been finalized and announcements to customers have been completed.Under regulations of the U.S. Securities and Exchange Commission (“SEC”), special care needs to be exercised in responding to analysts since Greif stock is publicly traded in the United States.
B. Future Downtime
To avoid the allegation that public disclosures of future downtime are signaling anticompetitive behavior, the following precautions are recommended:
- Limit announcements of future downtime to the smallest audience that has a legitimate need to know and only after downtime decisions have been finalized.
- Generally, do not make future downtime announcements to the media (including trade publications) or industry analysts, except as may be required by Greif’s disclosure obligations to the investment community consistent with SEC requirements.
C. Presentations to Analysts and Investors
Presentations to analysts and investors may require discussion of subjects such as prices or trends, capacity, operating rates, costs, inventory, backlogs, or market conditions.Review by the Greif Legal Department is strongly recommended in such situations to ensure that the communication is framed in a way that cannot be portrayed as “signaling” or an “invitation to collude” and is limited to information necessary to meet Greif’s disclosure obligations to the investment community consistent with SEC requirements.
D. Other Public Announcements
Certain announcements to third parties regarding industry actions could be challenged as an illegal call for competitors to make collective business decisions. For example, do not say things like:
“The industry needs to show some discipline to get prices up.”
“We all need to recognize that there is too much capacity and we need to do something about it.”
“No one is making money at today’s prices.”
“People need to take downtime if we are going to get out of the hole we are in.”
E. Communications about Greif’s Business Decisions
- Communications regarding competitively sensitive topics such as pricing, output, downtime, and capacity should clearly document the unilateral, legitimate reasons why particular actions were taken.For example, if a price increase was justifiable due to increased costs or increased demand, that information should be stated.If downtime at a mill is being taken for maintenance purposes, that fact should be stated.
- Vague statements about industry conditions or actions by competitors should be avoided.For example, do not say things like: “The price increase is in line with general price increases industry-wide.”
- Where information about competitive conditions in the industry is obtained from legitimate sources, such as customers or industry publications, the source of the information should be documented.
- Special care should be given, in internal documents that discuss reasons for market decisions, to document the unilateral reasons for those decisions.For example, you might note that raw material prices are up and demand has increased as a reason to increase prices, or that company inventories are up and demand is soft as a reason to take downtime.
- Avoid speculation about the motives for competitors’ actions.For example, do not say things like: “Others followed our lead...”
F. Publications That Conduct Market Surveys
The following guidelines are suggested for communications with publications that conduct market surveys and report estimates of current market prices, such as Pulp & Paper Week and Random Lengths:
- Whether Greif chooses to provide data to a market reporting service should be decided by an officer of Greif.Any data so provided should be current and accurate data reflecting actual open market transactions.If Greif does not have any open market sales/purchasers in a product category, do not report any pricing data in that category.Do not provide forecasts or any other comments on possible future prices or product availability.
- In order to avoid the appearance that the reporting service is acting solely for the manufacturers, provide data only to those reporting services that report current market activity after consulting with both manufacturers and purchasers.Only respond to inquiries from market reporting services, do not initiate calls to them.
- Avoid commenting to reporting services about their published reports, except to correct a serious erroneous report attributed directly to Greif.Do not comment to reporting services on activities or rumors relating to other companies.
- In considering whether to provide data to a market reporting service, consider whether the service follows appropriate practices to minimize litigation risk to the industry, such as publishing their market price estimates on an aggregated basis, rather than detailing data by individual companies.
II. Company to Company Interactions/Information Exchanges/ Benchmarking (with Competitors)
Communications of any kind among competitors, including benchmarking, can generate a perception that competitors misuse these exchanges to reach and enforce agreements on, for example, price, production, or allocation of markets.While limited benchmarking programs can enhance efficiencies and reduce costs, such programs should be approved by the Greif Legal Department in advance and should involve careful planning, control and execution.
To minimize the antitrust risk and the perception of inappropriate competitor communications, the following precautions are recommended:
- Benchmarking with non-competitors, such as companies in other industries, should pose little or no antitrust legal risk
- Direct benchmarking involving contact with competitors should be limited, done only in exceptional circumstances and with prior review and approval from senior management and review by the Greif Legal Department
- Benchmarking and statistics done by third parties (for example, a trade association or a consulting firm) should not pose significant risks if done in accordance with the following:
- the survey is done by a third party (for example, trade association or consultan and the data is maintained as confidential;
- the data published is more than three months old; and
- the data published is aggregated such that no data point has data from fewer than
- five respondents and no single respondent accounts for more than 25% by weight
Appendix A contains the AF&PA Statement of Policy and Procedures Regarding Statistical Reports.Variations from these parameters may be appropriate in particular situations after review and approval by the Greif Legal Department.The AF&PA statistics program has undergone rigorous antitrust counsel review and may be a useful reference when Greif considers participation in benchmarking or information-sharing programs sponsored by other trade associations.
B. Company to Company Interactions
Company to company interactions and formal or informal information exchanges may be portrayed as collusion to set prices or other anticompetitive behavior.To avoid this misperception, the following precautions are recommended:
- Do not communicate with competitors on sensitive competitive topics (other than in connection with legitimate purchase and sale transactions as set out in III. below, in which case the communication should be limited to the information necessary to complete the legitimate transaction).Sensitive competitive topics include the following:
Bids (or intent to bid or not to bid)
Terms of sale
Changes in operating rates
Expansion and contraction plans
Changes in operating schedules
Capacity or output
Downtime or turnaround plans
Selection or classification of customers
Markets, marketing strategies or plans
Dividing markets, geographic territories or customers
Boycotting any customer, supplier or other competitor
Termination of a customer relationship
In the case of labor costs in multi-employer bargaining situations, consult with the Greif Legal Department.
- Do object to any dealings or discussions involving competitive information by stating“It is improper to discuss such matters” and remove yourself from the conversation.Immediately follow up such dealings or discussions by consulting with the Greif Legal Department and send all documents related to such matters to the Greif Legal Department.
- Minimize informal contacts between competitors, such as plant visits between company engineers, except as reviewed and approved by the Greif Legal Department.While certain activities, such as safety and environmental benchmarking are appropriate, competitor contacts, no matter how laudable, raise sufficient risks of misperception that utmost care must be taken.
- Forward to the Greif Legal Department any correspondence, email or other written communication received from a competitor that discusses competitive information.
- Do not select distributors and other customers on the understanding that products will be resold only at prices specified by Greif.
- Any exclusive dealing arrangement, requirements contract, reciprocal dealing arrangement, or requirement that a customer must purchase from Greif other unwanted products or services (commonly called a tying or bundling arrangement) must be reviewed by the Greif Legal Department.
III. Purchase and Sale Transactions Among Competitors
A. Two basic principles should be followed
Any communication with a competitor/supplier or competitor/customer must be in the context of a legitimate, good faith interest in buying or selling. This does not mean that every conversation must result in a purchase or sale.For example, company X may call supplier Y to explore a purchase, but learns that there is no product availability or the price isn’t right.However, the context is that company X had a genuine, legitimate interest in buying.This is to be contrasted with a “dummy” call where there is no interest in buying, but the call is made primarily to obtain market information.
Assuming that the first principle is met, the conversation should be strictly limited to matters directly necessary to complete the transaction at hand.Never exchange “competitive intelligence” during these discussions.This includes discussions about general market trends, supply or demand, pricing, or other competitors that is not related to bona fide needs for the transaction at hand.
B. Product Trades
- Discussions between trading parties should be limited to information necessary to complete the particular trade transactions.Never exchange “competitive intelligence” during discussions about trades or products.This includes discussions about general market trends, supply or demand, pricing, or other competitors that is not related to the bona fide needs for the trade.This means you cannot even ask simple questions like “How is business” or “What are you seeing in the market these days”.
- Trading parties should seek to price trades in ways that reduce or eliminate the need for regular discussions of market prices between the parties
- Trades should be documented in writing, which should include a specified duration for the trade.Trade arrangements should be reviewed regularly to determine if there is a business justification to continue the trade relationship with a competitor.
IV. Participation in Industry Conferences/Meetings
- No employee may join any trade association, multi-employer group or other organization without approval by an officer of Greif or that employee’s Business Unit manager
- Attendance by an employee at a trade show, trade association meeting and/or industry-wide meeting or conference must be reviewed by an officer of Greif or that employee’s Business Unit manager for appropriateness.Particular care should be taken if meetings involve personnel with pricing authority.Industry pricing, market trends, output, and other sensitive competitive topics should never be mentioned or discussed in any fashion.If pricing or any inappropriate topic is raised by a competitor, Greif personnel should object and, if necessary, leave immediately.The Greif Legal Department should be contacted immediately whenever improper matters are discussed and provided with any relevant documents
- Special care should be taken when making presentations at trade association or industry meetings and conferences or trade shows, especially on topics with competitive sensitivity (for example, prices or trends, capacity, operating rates, costs, or market conditions). If the presentation is on a topic of competitive sensitivity, that presentation should be reviewed by the Greif Legal Department and the legal counsel for the group producing the event.
The actions of agents can create the risk of antitrust litigation, both criminal and civil.Greif should encourage its agents to adopt suitable antitrust compliance guidelines and should consider the existence and effectiveness of such guidelines in evaluating the performance of their agents.In the case of agents that serve multiple companies in the same industry, such compliance guidelines should specifically address the special challenges of such relationships, including safeguards against the flow of information among competitors that might be portrayed as reducing competition.
VI. Compliance with Other Antitrust and Competition Laws
This Policy is focused primarily on conduct and circumstances that relate to price fixing, but all employees must remain mindful of and comply with laws pertaining to price discrimination (known as the Robinson-Patman Act), refusal to deal or boycotting of customers, product tying arrangements, exclusive dealing arrangements and other applicable laws.You should always consult with the Greif Legal Department with any questions regarding these matters and in any situation that appears to have the potential to violate antitrust laws.
AF&PA Statement of Policy and Procedures Regarding Statistical Reports
Statistical reporting is one of the core functions of a trade association.AF&PA’s statistical reports provide substantial benefits to association members by providing accurate and timely information that is highly useful for sound business planning.At the same time, under some circumstances statistical reporting programs can give rise to antitrust concerns.Accordingly, these guidelines are designed to ensure that AF&PA’s statistical reporting system does not create antitrust problems.
- No antitrust concerns are presented by statistical reports wherein: (a) the data is at least three months old, (b) the data is aggregated from at least five reporting companies, and (c) no company accounts for more than twenty-five percent of the aggregate data in any category.Where only some data categories in a report meet these requirements, the compliant data categories may be cleared without review, but noncompliant categories must receive legal review.Any report that provides data on a company-specific basis is inherently more likely to raise antitrust concerns and therefore must be carefully reviewed by counsel
- Statistical reports that provide information that is otherwise publicly available before the time of publication raise no antitrust concerns
- Statistical reports that provide data regarding consumption or demand at the customer level (as opposed to reporting companies’ consumption of, or demand for, certain goods or services) raise no antitrust concerns
- Statistical reports that provide data concerning reporting companies’ use of goods or services are safe from an antitrust standpoint if the reporting companies: (a) account for less than thirty-five percent of overall purchases of each product or service, and (b) the products or services with respect to which such reports are provided collectively account for less that twenty percent of the reporting companies’ cost of any product that they produce
- Statistical reports that provide data concerning imports or exports of particular products would raise no concerns to the extent that imports or exports account for less than twenty-five percent of U.S. sales
Revised May 1, 2011