DOJ Continues To Prioritize No-Poach Cases

In recent years, the U.S. Department of Justice has tried three criminal no-poach cases to a jury, and in all three the defendants were acquitted. But expect the crackdown on the use of allegedly illegal no-poach agreements between employers to continue.

A "no-poach" is a tacit or express agreement between employers not to hire or solicit employees from one another. This type of agreement may be lawful under the "rule of reason" if it is reasonably necessary to promote a collaboration between employers. No-poach agreements that are either not ancillary to a larger collaborative agreement, so called 'naked' no poach agreements, or which are so broad they cannot be justified as reasonably necessary to enable business collaborations, have long been considered illegal and outside the rule of reason. However, enforcement against illegal no-poach agreements had until lately been limited to civil investigations and litigation. Recently, however, the DOJ has