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To most people, “poaching” is a bad thing, connoting a mix of elephant hunting and mediocre eggs. But in labor and employment—where “poaching” means recruiting away another employer’s talent—antitrust regulators, legislators, and class action attorneys have increasingly made clear that companies should engage in poaching, or else they will face potentially serious consequences under the antitrust laws.…
A senior sales executive for your biggest competitor is looking to jump ship, and wants to join your company. Your management is thrilled.  Not only will your company gain a talented salesperson with industry knowledge and contacts, but you will also be hurting your competitor at the same time.  What a coup! However, the question crosses your mind, are there any antitrust issues involved in hiring away a competitor’s employees? The answer is:  there can…
On October 20, the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) jointly issued antitrust guidance for human resources professionals. The agencies also released a list of high-level red flags for the unwary. The DOJ and FTC’s guidance reminds HR professionals to avoid entering into agreements concerning wages, employee benefits, or terms of employment with their competitors. The guidance also directs competing employers to steer clear of “no poach” agreements except in limited…
The Federal Trade Commission and Department of Justice Antitrust Division held their second public workshop on health care competition on February 24-25, 2015. The workshop is part of the FTC and DOJ’s commitment to periodically “step back” from the work of day-to-day antitrust enforcement to take in a broader perspective of trends in the health care industry. This workshop was intended to focus on recent developments related to health care provider organizations and payment models that may…
A federal court in Ohio has provided some of the clearest guidance to date on the application of the single-enterprise immunity doctrine to healthcare organizations. The single-enterprise immunity doctrine is critically important in the healthcare industry, because firms that qualify for single-enterprise immunity are free to engage with each other in joint contracting, joint strategic planning, and all other varieties of joint conduct without risking antitrust liability under Section 1 of the Sherman Act.…
A federal court has upheld the validity of the FTC’s recent rules for reporting certain transfers of exclusive patent rights in the pharmaceutical industry under the Hart-Scott-Rodino Antitrust Improvements (“HSR”) Act. We explained these Hart-Scott Rodino rules back in November when the FTC announced them, but note here that these rules require that an HSR filing be made for transfers of exclusive patent rights constituting “all commercially significant rights” in the pharmaceuticals sector that meet…
As if HIPAA Weren’t Enough… The Federal Trade Commission (FTC) is moving forward with an administrative action against a small medical laboratory that suffered two data security breaches, resulting in its patients’ protected health information falling into the hands of identity thieves. The facts of this case are unremarkable: a small facility suffered a data breach, and now faces the administrative consequences. Rather, what’s unique about this case is the nature of the administrative consequences…
On July 19, 2013, the Ninth Circuit affirmed an award of summary judgment to an aftermarket auto parts distributor that had received better prices than a competitor. Gorlick Distribution Centers, LLC v. Car Sound Exhaust System, Inc., 2013 U.S. App. LEXIS 14635 (9th Cir. 2013). In rejecting the competitor’s claim that the defendant’s receipt of favorable prices had violated the Robinson-Patman Act, the court held that the defendant had no reason to know that its prices…