DOJ Still Contemplating Criminal No-Poach Cases

Last year, we reported on the Department of Justice's (DOJ) decision to dismiss its only remaining criminal no-poach case and regroup. We advised that the DOJ was unlikely to abandon criminal no-poach cases entirely and would instead look for a case with favorable facts-in other words, a slam dunk. This month, our prediction was confirmed when Criminal I Section Assistant Chief Sara Clingan said at an American Bar Association conference on antitrust issues in healthcare that the DOJ is taking time to learn from its mistakes but would continue to prioritize no-poach cases.

Clingan, like others, emphasized the DOJ's success in convincing courts that no-poach, no-hire, and other horizontal labor restrictions are subject to the per se rule. With its success on no-poach legal issues, the DOJ appears focused on identifying cases that have the facts to support a first conviction. These include evidence that no-poach agreements were policed by conspirators and were successful in suppressing wages. Expect the DOJ to be more selective in bringing indictments rather than a full-scale campaign that marked the last several years. Given that Clingan's remarks were at a conference on antitrust issues in healthcare, expect that industry to be a top priority for the DOJ, as it has been for years. And don't forget the prodigious civil liability that comes with per se violations of the antitrust laws. The DOJ has failed to get win criminal conviction, but naked no-poach agreements remain illegal. Stay tuned.