Antitrust Compliance Statement of Policy
Adopted by the Board of Trustees June 4, 2020
The policy of Carnegie Hall is to comply with federal and state antitrust laws. This policy is motivated by a firm respect and belief in the antitrust laws and recognition of the potentially severe detrimental consequences of antitrust violations.
The principal federal laws governing competitive conduct are the Sherman Act (15 U.S.C. § 1 et seq.) and Federal Trade Commission Act (15 U.S.C § 41 et seq.). The goal of the antitrust laws is to preserve and promote competition by prohibiting agreements that unreasonably restrain trade. Certain “hard-core” practices, such as an agreement to fix prices, are considered per se illegal. Conduct that does not unambiguously injure competition is analyzed under the rule of reason, which balances the procompetitive benefits of the conduct against the potential anticompetitive harm to determine the likely overall effect on competition.
The following guidelines are intended to assist Carnegie Hall trustees, officers and staff in avoiding the potential for antitrust exposure in the first instance. Responsibility for compliance rests with each trustee, officer, and employee.
Under the U.S. antitrust laws, an agreement with a competitor establishing, altering, or relating to prices, or terms and conditions of sale, is per se unlawful, regardless of the circumstances. As a general rule, the antitrust laws require each competitor to make its own independent decisions on the terms and conditions of sales or providing services.
Accordingly, Carnegie Hall is prohibited from agreeing with competitors with respect to the following:
- Prices for the sale of products or services, regardless of the reasonableness of the price or whether the agreement is intended to raise, lower, peg, or stabilize prices;
- Any reduction in the output of services or products;
- Any agreement to refrain from competition, including though the division or allocation of any markets, territories, customers, or suppliers, or any limitation on the nature of business to be conducted by competitors; or
- Any boycott or attempt to exclude any competitor from the market.
Finally, the U.S. antitrust laws extend to competition among employers to hire employees. An agreement among competing employers to limit or fix the terms of employment for potential hires may violate the antitrust laws if the agreement constrains individual employer decision-making with regard to wages, salaries, or benefits; terms of employment; or even job opportunities.
Information Exchanges and Benchmarking Programs
Structured properly, the collection and dissemination of industry information and related data collection and statistical reporting will not run afoul of the antitrust laws. To minimize potential risk when engaging in an information exchange involving industry information, Carnegie Hall’s policy is to participate in programs that follow the safety zone for information exchanges established by the Federal Trade Commission and Department of Justice:
- The survey must be managed by a third party (such as a consultant or trade association);
- Any shared data must be more than three months old; and
- There must be at least five participants reporting data, no individual participant’s data may represent more than 25 percent of the data collected, and any information disseminated must be aggregated such that it would not allow recipients to identify the data provided by an individual participant.
Certification, Standard Setting, and Industry Self-Regulation
While certification, standard setting, and the development of industry best practices can serve valuable procompetitive purposes, any program that unreasonably restrains trade or furthers the interests of certain entities to the exclusion of others may raise antitrust concerns. Carnegie Hall’s policy is to take appropriate precautions when participating in certification, standard setting, or the development of industry best practices. These programs should be based on sound, objective justifications; reasonably related to the goals they intend to achieve; no more extensive than necessary to accomplish those goals; and incorporate reasonable procedural safeguards to ensure compliance with the antitrust laws.
Lobbying and Government Relations
Under the Noerr-Pennington doctrine of antitrust immunity, joint action by competitors to influence legislative policy, litigation in the courts, and proceedings before administrative bodies generally does not violate the antitrust laws. Under this doctrine, activity by a single company or group of companies to petition lawmakers, regulatory agencies, the courts, or other government bodies to adopt or change laws or regulations in ways that favor their business interests may be exempt from the antitrust laws, even if others may be disadvantaged if the efforts are successful. The immunity afforded under Noerr-Pennington does not extend to making false or misleading statements when petitioning the government.
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Participants in meetings have an obligation to terminate any discussion, seek legal counsel’s advice, or, if necessary, terminate any meeting if the discussion might be construed to raise antitrust risks. All meetings and activities of Carnegie Hall must be conducted in a manner consistent with this policy.