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ARTICLE · 20 MAY 2019

DOJ Wades Deeper Into No-Poach Advocacy

Skadden, Arps, Slate, Meagher & Flom LLP
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In early February 2019, the Department of Justice (DOJ) announced its intent to file statements of interest in multiple ongoing private lawsuits to clarify how "no-poach"agreements should be evaluated

United KingdomAntitrust/Competition Law
Boris Bershteyn
Boris Bershteyn
Karen Lent
Karen Lent
Tara L. Reinhart
Tara L. Reinhart
Zachary C. Siegler
Zachary C. Siegler

In early February 2019, the Department of Justice (DOJ) announced its intent to file statements of interest in multiple ongoing private lawsuits to clarify how "no-poach" agreements should be evaluated under the federal antitrust laws. But the brief notices the DOJ filed then only previewed what arguments it intended to make. Now that the DOJ has filed full statements of interest, the nuances in the DOJ's positions are becoming increasingly clear. At the same time, various states' attorneys general have directly challenged the DOJ's position, particularly in the context of franchise-based no-poach agreements.

In its first full statement of interest filed on February 8, 2019, in In re: Railway Industry Employee No-Poach Antitrust Litigation (W.D. Pa.) — a private follow-on litigation that followed a DOJ investigation and subsequent settlement with several companies in the railway equipment industry — the DOJ emphatically rejected the defendants' argument that

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