Ending Where It Began?: DOJ No-Poach Prosecutions Take Another Hit

The Department of Justice's years-long campaign to criminally prosecute no-poach agreements may be taking a hiatus. On November 13, 2023, the DOJ moved to dismiss its indictment against Surgical Care Affiliates, LLC ("SCA"), and its successor, SCAI Holdings, LLC, which alleged that SCA entered non-solicitation agreements with competitor outpatient medical centers, covering each other's senior-level employees.

Originally filed in January 2021, the SCA indictment marked the first of a line of criminal indictments prosecuting labor market allocation following the October 2016 release of the DOJ and FTC's Antitrust Guidance for Human Resources Professionals. But for various reasons, the SCA case languished as the court refused to rule on a motion to dismiss filed in March 2021. Meanwhile, the DOJ brought more indictments—and lost several closely-watched trials in DaVita, Jindal, Manahe, and most recently Patel.