Over the last several weeks, the U.S. Department of Justice
(DOJ) submitted notices of intent to file statements of interest in
five "no-poach" class actions. While each case dealt with
the same substantive issue – alleged "no-poach"
agreements – DOJ recommended different antitrust standards of
review apparently based on the facts as alleged in each complaint.
These notices of intent should be closely monitored for two
reasons. First, these notices provide additional guidance regarding
DOJ's position on "no-poach" agreements. Second,
litigants should carefully consider how best to leverage DOJ's
engagement in these cases to their advantage.
Changing no-poach landscape
Agreements between companies that compete for employees have
always been subject to antitrust scrutiny. DOJ and the U.S. Federal
Trade Commission (FTC) reiterated and expanded on this principle in
2016 by publishing "Antitrust Guidance for Human Resource
Professionals." The DOJ/FTC guidance focused in
