Agreement among retailers as to uniform store hours The Conlmission was asked to render an advisory opinion…

No. 125. Agreement among retailers as to uniform store hours The Conlmission was asked to render an advisory opinion as to whether it would be lawful for a trade association, after making a survey of retailer preferences as to store hours, to recommend that all stores observe the same hours, but that no sanctions would be imposed upon nonconforming retailers. The request was prompted by Advisory Opinion Digest No. 110, which the Association interpreted as having stated that the Commission found nothing unlawful in an agreement among retailers to observe uniform hours of business.

The Commission pointed out tbat its previous opinion advised merely that there would be nothing unlawful in a retail trade association conducting an informal survey intended to determine its members' individual preferences as to hours of business , followed by an announcement by the association of the results of the survey. The Comnlission €lnphasized that its opinion was based on the premise that any number of individual retailers may elect unilaterally to adopt common hours of business. The Commission did not intend to suggest that an agreement among competing retailers with respect to uniform hours of business would be lawfu1. On the contrary, it was the Commission s opinion that such an agreement among competitors , while perhaps not illegal per se would be fraught with grave risks of illegality. Conceivably, there might be some rare and most unusual circumstances in \vhich such an agreement 3mong competing sellers could be justified as a reasonable restraint of trade , but this seems unlikely. The fact that no sanctions or coercion are imposed upon noncomplying- retailers cannot legitimatize an otherwise unlawful agreement in restraint of trade.

In sum, it was the Commission s opinion that the conduct of a survey as to its members' business hours and an announcement of the results of that survey by a trade association, would not be unla\vful so long as no agreement among competing sellers was involved. (File No. 673 7066, released May 16, 1967.