No-Poachers Beware: the DOJ and Class Action Plaintiffs Turn Attention to No-Hire Agreements
First published in ABA Section of Antitrust Law - Cartel & Criminal Practice Committee Newsletter, Summer 2018
By Lindsey R. Vaala and David C. Smith
Companies that engage in “no poach” agreements with competing employers do so at their peril. Following the October 2016 release of the DOJ/FTC Antitrust Guidance for Human Resources Professionals (“HR Guidelines”) making clear that “no-poach” or “mutual no-hire” agreements would be a focus of enforcement going forward, the DOJ has made good on the promise to bring new enforcement actions in this area. Most recent among these is a DOJ civil settlement announced earlier this month against some of the world’s largest rail suppliers. Imminently after the DOJ enforcement action and settlement was announced, a succession of class action complaints was filed on behalf of current and former employees of the target companies. While the DOJ’s enforcement efforts have so far been limited to civil procedings, there is every reason to expect that criminal prosecutions are forthcoming.