Juries Not Buying DOJ Antitrust Labor Push as Losses Mount
Law360
Law360
Lisa Phelan spoke to Law360 about the U.S. Department of Justice (DOJ) Antitrust Division’s third trial loss in a criminal case alleging employers agreed to fix wages or not hire each other’s workers.
The clean acquittal of four operators of home health agencies accused of conspiring to fix caretakers’ wages in Maine means that of the three cases to reach juries so far in the still-nascent field of criminal wage-fixing and no-poach charges, the Antitrust Division has won a conviction only on a single count – lying to investigators – and none for competition law violations.
“DOJ is trying hard to establish this conduct as per se criminal conduct, and they have been successful from a legal perspective,” Lisa said. “So far, they have won every motion to dismiss, having courts conclude that wage-fixing and no-poach agreements can be pursued as per se criminal offenses. However, their case selection criteria may be too aggressive, as juries keep rejecting their evidence.”
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