So far, the DOJ's labor market prosecutions are holding up
and will continue to pose a risk for companies engaged in labor
market collusion.
A little over a year after bringing its first
“no-poach” prosecution, the U.S. Department of
Justice's Antitrust Division (DOJ) defeated a motion to
dismiss an indictment in a closely watched decision that may make
it more difficult for defendants to challenge such indictments in
the future. On January 28, 2022, in United States v.
DaVita Inc., Judge R. Brooke Jackson of the U.S. District
Court for the District of Colorado ruled that naked horizontal
nonsolicitation agreements that allocate the
market―i.e., those that are not ancillary to a
legitimate procompetitive business purpose―are per se
violations of the Sherman Act. Restraints on soliciting or hiring
employees that are subordinate, collateral and necessary to a
legitimate transaction, such as a collaboration agreement, that may
enable companies to offer goods or
