Over the past couple of years, the U.S. Department of Justice
(DOJ) has stepped up antitrust enforcement against companies for
entering "no-poach" agreements. These
"no-poach" or "no-hire" agreements are
arrangements entered into between companies that would otherwise
compete for the same employees, whereby each company agrees not to
recruit/solicit or hire the other's employees.
It began in October 2016, when the DOJ and the U.S. Federal
Trade Commission (FTC) issued the Antitrust Guidance for Human
Resource Professionals (the "guidelines"), warning
employers that the DOJ intends to proceed criminally against
no-poach agreements in appropriate cases. Notably, the guidelines
state that companies will be subject to the guidelines as
"competitors" if they compete for the same type of
employees, regardless of whether they compete to sell the same type
of goods or services. In the guidance, the DOJ and the FTC also
issued a "non-exhaustive" list of red flags that
