University Policy 4.25
Antitrust Compliance

1.1 Antitrust Laws

The federal antitrust laws generally prohibit agreements that reduce competition. An understanding among Competitors in higher education and other institutions to do any of the following may be a violation of antitrust laws:

• set or fix prices and terms upon which they buy or sell products or services;
• limit or control amounts produced or purchased;
• refuse to do business with a particular customer or supplier;
• allocate or divide up markets, territories, or customers;
• wage-fixing; and
• no-poach agreements.

A written contract or evidence of a verbal agreement may be deemed evidence of an illegal agreement. However, less formal activity may also be deemed to be evidence of an illegal agreement to reduce competition. For example, sufficient evidence to support an inference of conspiracy has been found in the sharing of current and prospective price information through press releases, price posting, and even informal dinner party discussion followed by parallel action on future rates.

The limitations and guidance described here apply to all types of communications between Cornell Representatives and representatives of other institutions and professional associations, whether formal (e.g., responding to a survey) or informal (e.g., having a phone conversation with a colleague from another institution). The restrictions on information-sharing and prohibited agreements described in this Policy apply to communications with any other college or university and with any Competitor. These restrictions do not pertain to internal communications solely between or among Cornell departments, units, or employees.

1.2 Prohibitions and Restrictions

Subject to certain limited exceptions, Cornell Representatives shall observe the following prohibitions and restrictions:

• 1.2.1 Student Tuition, Fees, and Budget Assumptions

• Cornell Representatives shall not enter into any agreements or understandings with representatives of other universities concerning the level of tuition or other fees (such as room, board, health fee, or activity fee) to be charged by the University. 
• Cornell Representatives shall not communicate to representatives of other colleges or universities any information concerning plans or projections, including budget assumptions, regarding future levels of tuition or student fees unless and until those levels have been approved by the Board of Trustees and publicly announced. Nor shall Cornell Representatives request any such information from another college or university. 
• The same restrictions apply to the exchange of information about financial planning assumptions, such as inflation factors and endowment distribution calculations and rates, that are used in determining budgets and tuition levels for future years. Cornell Representatives shall not enter into agreements or understandings with counterparts at other universities concerning such financial assumptions, nor solicit from or disclose to other universities any information about the assumptions used to develop Cornell’s budgets or tuition levels.

• 1.2.2 Salaries, Benefits, and Other Terms of Employment

• Cornell Representatives shall not enter into any agreement or understanding with Competitors concerning the salaries to be paid to faculty or administrative employees or concerning their employee benefit levels or other terms of employment. Nor shall Cornell Representatives request from or furnish to Competitors any information about future faculty or administrative salary levels, salary ranges, benefits, or any other terms of employment.
• Cornell Representatives shall not agree to maintain current salary levels or to modify salary levels in any particular way (e.g., 5% salary pool) and shall not solicit such information or discuss such commitments with individuals from other colleges, universities, or organizations.
• Cornell Representatives shall not have any agreements or understandings with Competitors to limit the terms on or extent to which Cornell Representatives will recruit or hire faculty members or other employees from one another (so-called “no poach” agreements).

• 1.2.3 Student Financial Aid

• Cornell Representatives shall not:
• 1. agree with any other college or university on all or any part of financial aid, including grants, self-help, and family contribution;
• 2. agree with any other college or university regarding the calculation of family contribution;
• 3. agree with any other college or university to apply a common formula, method, or algorithm to determine family contribution;
• 4. communicate with any other college or university concerning the calculation of family contribution for a specific applicant;
• 5. communicate with any other college or university about future, nonpublic plans or projections regarding summer savings requirements or self-help requirements;
• 6. agree with any other college or university regarding the packaging of financial aid;
• 7. agree with any other college or university to apply a common formula, method, or algorithm for the packaging of financial aid;
• 8. communicate with any other college or university concerning the packaging of financial aid for a specific applicant;
• 9. communicate with any other college or university regarding the financial aid award to any specific applicant; or
• 10. communicate with any other college or university regarding nonpublic financial aid policies, procedures, or statistics (including, but not limited to, expected or actual financial aid expenditures).

• 1.2.4 Admissions

• Cornell Representatives shall not:
• 1. communicate with any other college or university regarding nonpublic admissions policies, procedures, or statistics (including, but not limited to, expected or actual enrollment yield rates, waitlist sizes, and target class sizes); or
• 2. communicate with any other college or university concerning the admissions application, status, or decision for a specific applicant before publicly announced (if applicable).

• 1.2.5 Surveys and Other Information Exchanges

• Competitively sensitive information should not be shared with Competitors. Competitively sensitive information includes nonpublic information that is granular (such as customer-, supplier-, or employee-specific information); recent, current, or forward-looking; and relates to prices or pricing strategies, costs, revenues, profits or margins, capacity or output, inventory, wages, or strategic plans. It also includes confidential negotiated terms of procurement contracts and managed care contracts. See below Section 1.2.8 for additional guidance on procurement contracts and managed care contracts.
• Each year, many departments and units are asked to participate in surveys looking back at tuition, salaries, financial aid, admissions, and other subjects of interest to university administrators and healthcare providers. Sharing of such information, even in the context of a third-party survey, raises antitrust questions and shall be reviewed by the Office of General Counsel before participation. See below Policy Section 1.2.7. for separate rules regarding research. In addition, permission from the relevant Dean, Vice President, or their designee is required to participate in any such survey.
• From an antitrust standpoint, in general it is permissible to furnish information to and receive information from such surveys provided that:
• 1. the information is publicly available (i.e., nonpublic information must not be shared under any circumstances);
• 2. the information is historical (i.e., it is already in effect for the current academic year or relates to prior years); and
• 3. neither the survey nor the response states or implies what an institution plans in the future.

• 1.2.6 Professional Meetings

• When participating in cooperative professional activities and professional organizations, Cornell Representatives shall be mindful of the long-standing suspicion regarding interactions with an institution’s Competitors that underlies the antitrust laws.
• When attending professional association meetings, Cornell Representatives shall be mindful of the fact that these guidelines apply in both formal and informal settings. Whether information is communicated over lunch, electronic message, or in a conference panel discussion, the same prohibitions and restrictions apply.
• Cornell Representatives shall review in advance agendas for upcoming association meetings and shall not participate in discussions on topics that involve prohibited information sharing between Competitors as described in this Policy – i.e., student tuition, fees and budgets (Section 1.2.1.), salaries and benefits (Section 1.2.2.), student financial aid (Section 1.2.3.), admissions (Section 1.2.4.), and surveys and information exchanges (Section 1.2.5.). If there are questions or concerns about prohibited agenda topics, Cornell Representatives shall confer with the Office of General Counsel prior to the meeting. To the extent agendas or topics of discussion are not made available in advance of any upcoming association meetings, Cornell Representatives shall endeavor to make requests for production of such agendas or topics of discussion. Be mindful that representatives of other universities may not have received legal advice concerning antitrust laws and may be less informed about the appropriate parameters of discussions among universities. The Office of General Counsel is available to help with these inter-institutional discussions.
• If discussion of prohibited topics does occur during a professional meeting — whether planned or spontaneous — Cornell Representatives shall leave immediately, seek to have their departure noted in any minutes of the meeting, and notify the Office of General Counsel at the earliest opportunity. Mere presence at such discussion can have significant legal consequences.

• 1.2.7 Joint Research

• Cornell participates in partnerships and collaborations with other colleges, universities, institutions, physicians, researchers, and others on research activities and scholarly endeavors (“Joint Research”). While the antitrust laws generally do not prohibit such Joint Research efforts or scholarly collaborations with individuals at other institutions, they do still prohibit entering into agreements that eliminate or reduce competition in markets for goods and services. Another institution or employer may continue to be a Competitor of Cornell under the antitrust laws even if the institution participates in scholarly or research collaborations with Cornell. As such, it is important to abide by the prohibitions against agreements relating to information sharing or agreements relating to student tuition, fees and budgets (Section 1.2.1.), salaries and benefits (Section 1.2.2.), student financial aid (Section 1.2.3.), admissions (Section 1.2.4.), and surveys and information exchanges (Section 1.2.5.) when conducting Joint Research.

• 1.2.8 Contracting, Procurement, and Managed Care

• Cornell Representatives shall make decisions concerning the purchase or sale of goods or services independently of Competitors, except in connection with a lawful collaboration reviewed and approved by the Office of General Counsel. Outside of such an approved collaboration, Cornell Representatives shall not enter into agreements or understandings with Competitors concerning competitive decision-making or contract terms, including prices, reimbursements, discounts, bids, and the suppliers or customers with whom they will contract. These restrictions apply to procurement and managed care contracts.
• Consistent with Section 1.2.5, Cornell Representatives shall not request from or provide to Competitors competitively sensitive information concerning procurement or managed care contracts, including nonpublic pricing, reimbursement, discounts, bids, or other contracted terms except as expressly authorized by the Office of General Counsel in connection with a lawful collaboration arrangement. These restrictions apply to information exchanges made directly or indirectly through third parties such as purchasing organizations or other intermediaries.
• This Policy does not prohibit participation in lawful group purchasing organizations or other lawful joint purchasing arrangements, which may reduce costs and improve efficiency. Cornell Representatives shall consult the Office of General Counsel before entering new joint purchasing arrangements or materially changing an existing arrangement. Any information exchange authorized under this Section shall be limited to what is reasonably necessary for the approved arrangement. Participation in an approved collaboration does not authorize coordination with Competitors concerning purchasing, pricing, or other competitive decision-making outside of the approved scope of the arrangement.