Since 2010, with its cases filed against a number of leading technology companies, the Department of Justice (DOJ) has shined a spotlight on the potential antitrust risks associated with employers’ use of “no-poach” agreements in which companies agree not to hire or solicit each other’s employees. The DOJ and the Federal Trade Commission (FTC) issued joint guidelines in 2016 making clear that they would aggressively enforce the antitrust laws against such agreements between and among competitors as per se unlawful, including through criminal enforcement. Yet, the DOJ recently filed Statements of Interest in several pending antitrust cases brought against franchisors, taking the position that the no-poach agreements at issue in those cases were not per se unlawful and should be analyzed under the more forgiving rule of reason test. The DOJ’s filings do not reflect a change in the Department’s enforcement policy regarding no-poach agreements. The cases, however, in which the DOJ staked out its position bear watching and could ultimately provide helpful guidance to franchisors, manufacturers who distribute through independent dealers. Our Antitrust and Competition Team summarize and interpret the DOJ’s recent enforcement actions in our recent client alert.
