Recent DOJ Action in the No-Poach Arena

The Department of Justice (DOJ) and the Federal Trade Commission (FTC) in 2016 published Antitrust Guidance for Human Resource Professionals warning of criminal remedies for those participating in illegal no-poach agreements. Recently, the DOJ and FTC made good on that promise by filing the first public criminal indictment alleging a conspiracy between companies in which they agreed not to poach each other’s employees. The DOJ and FTC warned they could take such actions when “naked” wage-fixing and no-poach agreements were per se illegal violations under the antitrust laws.

Antitrust Implications of COVID Surcharges

While it may seem justified for businesses facing increased costs in these trying COVID-19 pandemic times to add “COVID surcharges” to ensure they can keep their doors open, businesses and their corporate counsel should be aware that such surcharges can raise serious competition concerns and need to be carefully navigated.