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ARTICLE · 21 MARCH 2018

DOJ Intends To Criminally Prosecute No Poaching Agreements

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The Antitrust Division of the Department of Justice has recently confirmed that it intends to bring criminal antitrust prosecutions of companies that have entered into "wage-fixing" or "no poaching" agreements.

United StatesAntitrust/Competition Law
Tracy Cole
Tracy Cole
Anat Maytal
Anat Maytal
Lee Simowitz
Lee Simowitz
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The Antitrust Division of the Department of Justice (DOJ) has recently confirmed that it intends to bring criminal antitrust prosecutions of companies that have entered into "wage-fixing" or "no poaching" agreements. At a Jan. 19, 2018, conference hosted by the Antitrust Research Foundation, DOJ Assistant Attorney General Makan Delrahim announced the potential criminal charges, warning that such agreements would receive the same criminal treatment as traditional price-fixing.

The DOJ's view that no-poaching agreements violate the law is not new. On Oct. 20, 2016, the Federal Trade Commission (FTC) and DOJ's Antitrust Division issued an 11-page joint guidance document titled "Antitrust Guidance for Human Resource Professionals" (the HR Guidance), intended to alert human resources professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws. The HR Guidance made clear that "naked" agreements not to fix wages or

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