What’s Next For Labor Enforcement After DOJ Punts Case?
Law360
Law360
Lisa Phelan spoke to Law360 about the future of the U.S. Department of Justice (DOJ) after two Antitrust Division prosecutors quietly abandoned high-profile “no-poach” deals between rival employers. The Antitrust Division's top criminal enforcement official, Deputy Assistant Attorney General Manish Kumar, argued earlier this year that no-poach prosecutions “are extremely important cases,” even as the DOJ struggles to convince juries.
Lisa said, “Manish has more experience than his predecessor did in building and going to jury trial with antitrust cases. In doing that closer look, he may have concluded that the lessons to be learned from recent losses would teach that some of the already indicted cases would not be winnable at trial, as they suffered from the same problems/weaknesses/fact patterns as the recent losses.”
Regarding the issue with many no-poach cases lying in the language behind non-solicitation deals, Lisa stated, “At trial, as the facts came out, these 'no proactive solicitation' agreements actually in practice still allowed many employees to move between the companies. Thus, the harm seemed minimal, and judges and juries struggled to see the conduct as clearly impacting competition.”
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Practices