The departure of key employees can be quite damaging to a
business' bottom line. It is not surprising that businesses go
to great lengths and spend significant sums of money to keep those
employees. Sometimes, those lengths take the form of additional pay
and benefits to the key employee. In other instances, the measures
take the form of restrictive covenants that prevent the key
employee from accepting a similar role in a particular geographic
location. And sometimes, employers go too far.
In January, the Department of Justice ("DOJ") indicted
Surgical Care Affiliates, LLC and its successor SCAI Holdings, LLC
("SCA") on antitrust conspiracy charges because they
entered into a so-called "no-poach" agreement with a
competing employer. According to the two-count indictment, believed
to be the first of its kind, executives of SCA met with two of its
competitors and agreed not to solicit each other's senior-level
employees. E-mail correspondence amongst SCA employees
