SINCE ISSUING THE OCTOBER 2016 ANTI-trust Guidance to Human Resource Professionals ("HR Guidance") regarding potential antitrust violations in labor markets, the Antitrust Division of the Department of Justice ("DOJ") has been largely unsuccessful in criminally prosecuting such cases.1 The HR Guidance makes clear that DOJ views certain "naked" agreements that restrain competition in labor markets, including no-poach and wage-fixing agreements, as criminal violations of the antitrust laws.2 Courts and juries in the cases tried thus far, however, have not shared that view.
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Footnotes
1 U.S. Dep't of Justice & Fed. Trade Comm'n, Antitrust Guidance for Human Resource Professionals (Oct. 2016), https://www.justice.gov/atr/file/ 903511/download. In the years preceding the guidance, the Antitrust Division brought a number of high-profile civil lawsuits against Silicon Valley companies like eBay, Adobe, and Apple, in order to terminate existing no-poach agreements. United States v. Adobe Sys., Inc., No. 10-cv-01629, 2010 WL 3780278 (D.D.C. Sept. 24, 2010); United States v. Lucasfilm Ltd., No. 110-cv002220, 2010 WL 5344347 (D.D.C. Dec. 21, 2010).
2. Id.
Originally Published by Antitrust Magazine, 10 April 2024
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