While the Trump administration has sought a change in direction from its predecessor in a number of areas, criminal antitrust enforcement appears to be an exception. The Trump administration has continued the long-standing commitment to aggressive enforcement against both companies and individuals that has persisted across Republican and Democratic administrations.
The Department of Justice's Antitrust Division (the Division) has seen experienced and well-established lawyers accept appointments in the Division. These individuals have signalled that they intend to continue vigorously enforcing the laws against price-fixing and other per se illegal cartel conduct.
Nevertheless, enforcement numbers are down. The number of new criminal antitrust cases and the total amount of criminal antitrust fines continue to decline from a peak reached in 2015. This decline may be the result of the winding down of significant investigations, such as the Auto Parts, LIBOR and FX investigations, but other factors could also be at play. Some have suggested that the Division is overly reliant on the amnesty programme, and that fewer companies are applying for amnesty because of the increasing costs and risks of doing so, including the costs of dealing with other jurisdictions (when companies seek amnesty they now routinely do so in an ever increasing number of jurisdictions) and the costs of civil litigations that inevitably follow Division investigations.
Makan Delrahim took over as the Assistant Attorney General (AAG) of the Division in September 2017 after a lengthy confirmation process.
On 15 May 2018, Delrahim named Richard A Powers as the Deputy Assistant Attorney General (DAAG) for Criminal Enforcement, to replace the Acting DAAG, Marvin Price, a 35-year veteran of the Division and former chief of the Division's Chicago Field Office. While Division DAAGs are usually political appointees, the Deputy for Criminal Enforcement has historically been selected from the ranks of the Division's career staff. In a partial departure from this practice, before he was named to the Deputy post, Powers spent the prior three years as a trial attorney in the Fraud Section of the Department of Justice Criminal Division. He previously served as a trial attorney at the Division for six years.
Andrew Finch, a former law firm partner and counsel to the AAG, was named the Principal DAAG in April 2017. He served as the Acting Assistant Attorney General from that time until Delrahim's confirmation by the US Senate.
These appointments bring noteworthy public and private antitrust experience and point to a continuation of the Division's policy of aggressive enforcement against cartel activity. As Finch has noted:
we will continue to enjoy the benefits of stability and continuity in antitrust enforcement . . . [including the] [n]ow nearly a century old . . . per se rule against price fixing and similar naked restraints of trade [that] has long condemned conduct inherently detrimental to competition.1
While the Division has made clear its commitment to aggressive criminal antitrust enforcement, there has been a noticeable decrease in the number of total criminal cases filed and the penalties imposed by the Division in the past two years. The level of fines and penalties has seen a sharp drop since they reached a high in 2015. After four consecutive years of total criminal fines exceeding US$1 billion, and reaching an apex of US$3.6 billion in financial year 2015, 2016 saw a drop to only US$399 million, while total penalties reached a 10-year low of only US$67 million in 2017.2
Consistent with these trends, there is an increasing perception in the antitrust bar that the Division has been initiating fewer investigations, in part due to an overreliance on the amnesty programme. While there have been rumours of new non-public investigations, it is not clear whether, and when, the Division will reach the levels of enforcement seen in the years leading up to 2015.
Recent case developments
The Auto Parts investigation, the largest ever cartel investigation in terms of the number of corporate prosecutions, has been winding down, but the Division's successful prosecutions have continued into 2018. In May 2018, Maruyasu Industries Co Ltd pleaded guilty to price-fixing in the automotive steel tube industry and paid a fine of US$12 million.3 Altogether, the investigation has resulted in dozens of convictions of corporations and individuals, with total fines exceeding US$2.9 billion.
The Division has repeatedly stressed that it will continue to pursue potential cartel conduct in complicated financial and technology markets. For instance, Finch has stated that '[w]hile financial products may be more complicated than widgets – or auto parts, or computer screens – illegal agreements involving price fixing and bid rigging tend to look similar across industries.'4 Finch said that the Division will pursue criminal antitrust violations whether in traditional markets or where prices are fixed 'using advanced technology like online trading platforms or algorithms'.5 The Division has embraced this approach in its recent LIBOR and FX investigations.
The Division's investigation into the conspiracy to manipulate the price of US dollars and euros exchanged on the foreign exchange spot market has resulted in some of the largest criminal fines ever for antitrust violations, as well as guilty pleas by a number of large financial institutions. For instance, significant fines were imposed on Citicorp, Barclays, JPMorgan, and The Royal Bank of Scotland – US$925 million, US$650 million, US$550 million and US$395 million, respectively.6
The FX investigation, like Auto Parts, is winding down but the Division remains active in its final stages. On 26 January 2018, BNP Paribas pleaded guilty and agreed to pay a fine of US$90 million. BNP Paribas's guilty plea related to the market for the Central and Eastern European, Middle Eastern and African currencies.7
In May 2018, a federal grand jury also returned an indictment against Akshay Aiyerm, a former currency trader at JPMorgan. Aiyerm and his co-conspirators are accused of having near daily discussions in electronic chat rooms, over the phone, and through text messaging to exchange highly sensitive pricing information. Aiyerm is the sixth individual indicted for price-fixing in this industry. Two individuals have already pleaded guilty and three more are slated for trial in October 2018.
Since last year, the Division has reached plea deals with two more companies involved in alleged price-fixing of aluminium electrolytic capacitors. Those two companies, Nichicon Corporation and Nippon Chemi-Con Corporation, are the two largest manufacturers in the aluminium electrolytic capacitor industry. The presiding judge – Judge James Donato in the Northern District of California – made headlines in the first half of 2018 by rejecting a number of plea agreements in this investigation. For example, Judge Donato rejected the first plea agreement between the Division and Nichicon because the 'Type C' agreement allowed the judge to accept or reject the agreed upon fine, but allowed the defendant to withdraw its guilty plea if the judge imposed a different fine. After the parties agreed to a 'Type B' plea agreement, which allowed the judge to set the fine without enabling the defendant to withdraw the plea if the fine was too high, Judge Donato sentenced Nichicon to a US$54 million fine. This was US$12 million higher than the Division's recommended fine (and the fine included in the first plea agreement).8
Before announcing a plea agreement in May 2018, Nippon Chemi-Con and the Division were on track for an October 2018 trial. The Division indicted the company in October 2017. The plea agreement was apparently reached after Nippon Chemi-Con learned that an attorney who worked for a firm representing Nippon Chemi-Con in the Division investigation in 2014 and early 2015 later moved to the Department of Justice Criminal Division's Office of International Affairs and assisted the Antitrust Division in obtaining foreign legal assistance in connection with its criminal investigation of Nippon Chemi-Con.9 While the Division maintained that the attorney only worked on a discrete portion of a ministerial filing and otherwise had a circumscribed role acting as a conduit between the Division and the Japan Ministry of Justice, the Division admitted error nonetheless.10 Nippon Chemi-Con took the position that this constituted a significant conflict of interest. In subsequent filings with the court, the company explained that it sent a letter expressing its concerns to senior Department of Justice officials including Rod Rosenstein (the Deputy Attorney General of the United States), AAG Delrahim, and others.11 Ultimately, the parties resolved the issues and the broader investigation with a plea agreement under which Nippon Chemi-Con agreed to pay a fine ranging between US$40 and US$60 million. Judge Donato has accepted the plea but has not yet imposed a fine.
Finally, in June 2018, Tukuo Tatai, an executive of Elna Co Ltd, pleaded guilty to price-fixing charges.12 He will serve a sentence of one year and one day. Tatai is only the second executive in the Capacitor investigation to plead guilty. Nine additional individuals have been indicted, but each of them has apparently avoided prosecution by avoiding travel to the United States. This result begs the question of whether the Division has pushed too high the prison sentences demanded of foreign nationals who have the realistic option of avoiding US jurisdiction. While the Division has stressed its ability to seek extradition, as a practical matter, there have been few successful extraditions for antitrust offences and a number of important jurisdictions will not extradite their own nationals for antitrust offenses.
Public real estate foreclosure auctions
The Division continues its prosecution of individuals in the public foreclosure auction industry. The investigation has expanded in size and geographic scope in the past year, and the Division has alleged widespread bid-rigging in the industry. As a result, individual prosecutions are piling up.
Most recently, five real estate investors were sentenced for their roles in bid-rigging schemes in Northern California. Those five received sentences ranging from extended probation to eight months in prison with significant individual criminal fines. One individual was fined over US$1.2 million.13
Five defendants originally fought the Division's charges by arguing that the FBI relied on unconstitutional recordings made by stationary microphones installed by the FBI at the county courthouse where some of the auctions took place.14 In 2016, Judge Charles Breyer in the Northern District of California found that the recordings violated the Fourth Amendment, and barred the Division from using them as evidence. Judge Breyer found that the FBI's stationary microphones picked up conversations spoken in 'hushed tones' and captured conversations that FBI agents or passers-by could not have eavesdropped on in person. Judge Breyer ruled that this constituted an invasion of the defendants' expectations of privacy, even though the defendants were in public when the recorded conversations took place. However, Judge Breyer also ruled that the illegal recordings were not inextricably tied with the rest of the Division's investigation. The Division had obtained similar evidence through proper channels, such as informants, undercover agents and physical surveillance.
The first conviction for bid-rigging in the Mississippi public foreclosure auction industry occurred in February 2018 against two investors.15 In April 2018, three more individuals were sentenced for bid-rigging in the Mississippi market. Those three pleaded guilty to criminal charges for alleged involvement in the conspiracy for over five years.16
In addition, there have also been fines for bid-rigging in public foreclosure markets in Georgia,17 Florida18 and the Eastern District of California.19 In total, there have been over 70 guilty pleas from individuals in these investigations.
Water treatment chemicals
As part of an investigation that started in 2016, the Division reached a plea agreement with a former executive involved in bid-rigging and market allocation in the New Jersey water treatment chemical industry. The investigation had already resulted in plea agreements with one corporate defendant and two other individuals.20
The Division continued its investigation into alleged price-fixing of international ocean shipments of roll-on, roll-off cargo to and from the United States. In September 2017, a Norwegian company – Höegh Autoliners AS – became the fifth company to plead guilty to charges and agreed to pay US$21 million. The Division alleged that Höegh was involved from January 2001 until at least September 2012.21
Höegh's guilty plea follows on the announcement in July 2017 that Wallenius Wilhelmsen Logistics agreed to plead guilty and pay a US$98.9 million criminal fine. In 2014, Nippon Yusen Kaisha, Kawasaki Kisen Kaisha, Ltd, and CSAV also reached agreements to plead guilty and pay fines for price-fixing ocean shipping services for roll-on, roll-off cargo.
Three European executives were indicted for their roles in this alleged cartel in June 2017. They joined eight other individuals who had already been indicted as part of the investigation. Four individuals pleaded guilty while the rest remain fugitives.22
E-commerce (customised promotional products)
Two companies and two individuals have agreed to plead guilty to price-fixing in the e-commerce business for customised promotional products sold on online retailers, such as Amazon.com. Zaappaaz Inc and its president, Azim Makanojiya, agreed to plead guilty in 2017, with Zaappaaz agreeing to pay a US$1.9 million criminal fine.23 Custom Wristbands, Inc and its top executive, Christopher Angeles, also agreed to plead guilty. Custom Wristbands agreed to pay a criminal fine just over US$400,000.24 The case may be the first federal prosecution to consider the use of potentially collusive pricing algorithms in a price-fixing case.25
The Division has also continued its prosecutions in the alleged packaged seafood cartel. On 16 May 2018, the Division indicted Christopher Lischewski, the former CEO of Bumble Bee Foods, LLC, for his role in the alleged conspiracy. Bumble Bee pleaded guilty in May 2017 and agreed to pay a fine of 'at least US$25 million'.26 Mr Lischewski is the fourth individual prosecuted in this investigation.27
The Division's prosecution of Bumble Bee and Mr Lischewski highlights that the Division is on the lookout for cartel conduct when it conducts investigations in other areas. The Division uncovered evidence of the packaged seafood cartel while investigating a proposed merger between Bumble Bee and Chicken of the Sea. According to DAAG Barry Nigro, the parties were pursuing the merger by advancing 'clear loser arguments', which allowed the Division to review company documents that were apparently more extensive than what would have been produced had the parties abandoned the merger earlier. As the Division spent 'more and more time' with the documents, it concluded that there was a price-fixing conspiracy between the merging companies. Nigro noted that advancing 'loser' arguments during the merger review process provides the Division with 'a wonderful opportunity to wade through more of your documents, talk to more of your customers and hear more complaints about the transaction'.28
Four owners of school bus transportation companies were sentenced for bid-rigging and fraud related to school bus transportation routes in Puerto Rico. All four individuals were sentenced to jail time of one year and one day. The evidence showed that the individuals allocated contracts for transportation routes between their companies and also submitted fraudulent certifications and award letters.29
The Division prosecutes defendants criminally under the per se rule if they participate in 'hardcore cartel agreements' such as price-fixing, bid-rigging and market division or allocation schemes.30 In the wake of the Division's civil cases in 2016 against several tech companies for alleged anticompetitive hiring practices, the Division and the Federal Trade Commission jointly released Antitrust Guidance for Human Resources Professionals, which added naked wage-fixing and no-poach agreements to the list of per se violations of the antitrust laws.31 The Division warned that going forward it 'intends to proceed criminally against naked wage-fixing or no-poaching agreements'.32 In February 2018, AAG Delrahim announced that companies can apply for leniency from both criminal and civil liability arising from no-poach agreements.33 Delrahim stated that these agreements are 'just like any price-fixing' arrangement and lack 'redeemable qualities'.34
In May 2018, DAAG Nigro stated that he was 'surprised' at the number of no-poach investigations the Division had pending.35 He also expressed that it was 'shocking' how prevalent those agreements have become.
Consistent with this enforcement trend, in April 2018, the Division reached a civil settlement with rail equipment suppliers Knorr-Bremse AG and Westinghouse Air Brake Technologies Corporation (Wabtec), in connection with alleged unlawful agreements not to compete for each other's employees. The two companies compete in the rail equipment supplier industry and, as alleged, maintained agreements for years not to poach each other's employees. The Division's complaint cited a 2009 email, where a Knorr director wrote to a senior executive at Wabtec that: '[Y]ou and I both agreed that our practice of not targeting each other's personnel is a prudent cause for both companies. As you so accurately put it, "we compete in the market"'.
According to the complaint, the no-poach agreements between Knorr, Wabtec and another competitor restricted competition for US rail industry workers, which limited the workers' access to better job opportunities, restricted their mobility and deprived them of competitively significant information that they could have used to negotiate for better terms of employment. The Division chose not to seek criminal charges in this case, because the alleged conduct occurred prior to the issuance of the 2016 Guidance on no-poach agreements. Knorr and Wabtec settled the civil charges by agreeing to cease the alleged conduct.36
Antitrust and IP
DAAG Finch has explained that 'the application of antitrust law to intellectual property', including scrutiny of standard-setting organisations (SSOs) and the widespread use of FRAND (Fair, Reasonable and Non-Discriminatory) terms in price-setting, is a current area of enforcement focus. While the Division generally acknowledges that most standard-setting is pro-competitive, it also recognises that SSOs present opportunities for competitors to meet and discuss competition-related issues. Finch has raised concerns that these opportunities could turn collusive and serve as a means of engaging in and concealing cartel behaviour. Finch stated that:
[t]he Division has begun scrutinising what may appear to be buyer's cartel or seller's cartel behaviour that's designed to artificially shift bargaining leverage from IP creators to implementers, or vice-versa. In particular, the Division is focused on rules of SSOs that purport to clarify the meaning of 'reasonable and nondiscriminatory,' but that may instead serve to skew the bargain clearly in the direction of implementers.37
In a separate speech, AAG Delrahim cautioned that 'enforcers have strayed too far in the direction of accommodating the concerns of standard-setting bodies . . . [and that] perhaps we're risking and undermining the incentives for [IP] creators'.38 It remains unclear what sort of action the Division might pursue in this area, but SSOs should take note of the Division's apparent increased focus on conduct in this space.
International coordination for cartel investigations
The Division has acknowledged the need for 'greater international cooperation and coordination on cartel cases'.39 Recognising the steady increase of multi-jurisdictional investigations, the Division has committed to 'coordinate their activities, focus their investigations, and streamline processes'.40 In terms of specific proposals, DAAG Finch has suggested that antitrust enforcers around the world should tailor their investigations to domestic conduct in each country, narrow document requests, and coordinate on interviews and searches with foreign investigators.41 Finch also acknowledged the rising costs of international cooperation for leniency applicants, including a suggestion that the Department of Justice should be receptive to:
proposals from leniency applicants on specific ways in which an investigation can be made more efficient and ways in which we might coordinate efficiently with other jurisdictions. Reducing the burdens of multi-jurisdictional investigations on leniency applicants benefits not just the applicants, but the enforcers as well.
Finch's comments perhaps suggest recognition by the Division that the costs of seeking amnesty across multiple jurisdictions are creating disincentives to seek amnesty to begin with, perhaps helping to explain the apparent decrease in enforcement activity during the past two years.
The Division signals support for the repeal of Illinois Brick
AAG Delrahim has signalled the Division's intent to file amicus briefs and otherwise push to overturn the Supreme Court's holding in Illinois Brick to allow private federal antitrust claims for indirect purchaser plaintiffs.42 Currently, private plaintiffs representing allegedly injured indirect purchasers can only bring claims under the antitrust laws of several states, and not under federal antitrust law. While repeal of Illinois Brick would benefit indirect purchasers, it would also add to the already significant costs of follow-on civil litigation, perhaps further undermining the incentives to seek amnesty.
The authors would like to thank Liz Vitt, Alisa Mastro and Gizem Tunca from Shearman & Sterling's Washington, DC team for their assistance.
1 US Dep't of Justice, Acting Assistant Attorney General Andrew Finch Delivers Remarks at Global Antitrust Enforcement Symposium (12 September 2017), www.justice.gov/opa/speech/acting-assistant-attorney-general-andrew-finch-delivers-remarks-global-antitrust.
2 See US Dep't of Justice, Criminal Enforcement: Trends Charts Through Fiscal Year 2017 (last updated 12 March 2018), www.justice.gov/atr/criminal-enforcement-fine-and-jail-charts.
3 See US Dep't of Justice, Japanese Auto Parts Company Pleads Guilty to Antitrust Conspiracy Involving Steel Tubes (31 May 2018), www.justice.gov/opa/pr/japanese-auto-parts-company-pleads-guilty-antitrust-conspiracy-involving-steel-tubes.
4 US Dep't of Justice, Principal Deputy Assistant Attorney General Andrew Finch Delivers Remarks at 'Antitrust in the Financial Sector: Hot Issues and Global Perspectives' (2 May 2018), www.justice.gov/opa/speech/principal-deputy-assistant-attorney-general-andrew-finch-delivers-remarks-antitrust.
6 See US Dep't of Justice, Five Major Banks Agree to Parent-Level Guilty Pleas (20 May 2015), www.justice.gov/opa/pr/five-major-banks-agree-parent-level-guilty-pleas.
7 See US Dep't of Justice, BNP Paribas USA Inc. Pleads Guilty to Antitrust Conspiracy (26 January 2018), www.justice.gov/opa/pr/bnp-paribas-usa-inc-pleads-guilty-antitrust-conspiracy.
8 See US Dep't of Justice, Seventh Company Agrees to Plead Guilty for Price Fixing of Electrolytic Capacitors (11 July 2017), www.justice.gov/opa/pr/seventh-company-agrees-plead-guilty-fixing-prices-electrolytic-capacitors; Mike Swift, 'Judge imposes higher-than-recommended antitrust penalty on capacitor manufacturer', MLex (11 April 2018), www.mlex.com/GlobalAntitrust/DetailView.aspx?cid=980834&siteid=191&rdir=1.
9 See Joint Status Report at 2, United States v Nippon Chemi-Con, No. 4:17-cr-00540-JD (ND Cal. 11 May 2018), ECF No. 47.
10 See id at 2–3.
11 See id at 4.
12 See US Dep't of Justice, Second Executive Pleads Guilty to Participating in Capacitors Price-Fixing Conspiracy (27 June 2018), www.justice.gov/opa/pr/second-executive-pleads-guilty-participating-capacitors-price-fixing-conspiracy.
13 See US Dep't of Justice, Five Real Estate Investors Sentenced for Rigging Bids at Northern California Public Foreclosure Auctions (9 May 2018), www.justice.gov/opa/pr/five-real-estate-investors-sentenced-rigging-bids-northern-california-public-foreclosure.
14 See Cara Bayles, 'Wiretapped Real Estate Investor Admits Guilt In Bid-Rigging', Law360 (25 October 2017), www.law360.com/articles/978438/wiretapped-real-estate-investor-admits-guilt-in-bid-rigging.
15 See US Dep't of Justice, Mississippi Real Estate Investors Plead Guilty to Conspiracy to Rig Bids at Public Foreclosure Auctions (15 Febuary 2018), www.justice.gov/opa/pr/mississippi-real-estate-investors-plead-guilty-conspiracy-rig-bids-public-foreclosure.
16 See US Dep't of Justice, Mississippi Real Estate Investors Plead Guilty to Conspiring to Rig Bids at Public Foreclosure Auctions (10 April 2018), www.justice.gov/opa/pr/mississippi-real-estate-investors-plead-guilty-conspiring-rig-bids-public-foreclosure.
17 See US Dep't of Justice, Georgia Real Estate Investor Sentenced to 16 Months in Prison for Bid Rigging and Bank Fraud at Public Foreclosure Auctions (19 December 2017), www.justice.gov/opa/pr/georgia-real-estate-investor-sentenced-16-months-prison-bid-rigging-and-bank-fraud-public.
18 See US Dep't of Justice, Three Real Estate Investors Indicted for Bid Rigging in Florida Online Foreclosure Auctions (3 November 2017), www.justice.gov/opa/pr/three-real-estate-investors-indicted-bid-rigging-florida-online-foreclosure-auctions.
19 See US Dep't of Justice, Real Estate Investor Indicted for Bid Rigging in Eastern District of California (20 October 2017), www.justice.gov/opa/pr/real-estate-investor-indicted-bid-rigging-eastern-district-california.
20 See US Dep't of Justice, Former Executive Admits Guilt in Antitrust Conspiracy Affecting Water Treatment Chemicals (3 January 2018), www.justice.gov/opa/pr/former-executive-admits-guilt-antitrust-conspiracy-affecting-water-treatment-chemicals.
21 See US Dep't of Justice, Norwegian Company Agrees to Plead Guilty to Price Fixing on Ocean Shipping Services for Cars and Trucks (27 September 2017), www.justice.gov/opa/pr/norwegian-company-agrees-plead-guilty-price-fixing-ocean-shipping-services-cars-and-trucks.
22 See US Dep't of Justice, International Shipping Executives Indicted for Colluding on Bids and Rates (27 June 2017), www.justice.gov/opa/pr/international-shipping-executives-indicted-colluding-bids-and-rates.
23 See US Dep't of Justice, E-Commerce Company and Top Executive Agree to Plead Guilty to Price-Fixing Conspiracy for Customized Promotional Products (7 August 2017), www.justice.gov/opa/pr/e-commerce-company-and-top-executive-agree-plead-guilty-price-fixing-conspiracy-customized.
24 See US Dep't of Justice, Second E-Commerce Company and Its Top Executive Agree to Plead Guilty to Price-Fixing Conspiracy in Customized Promotional Products Industry (22 August 2017), www.justice.gov/opa/pr/second-e-commerce-company-and-its-top-executive-agree-plead-guilty-price-fixing-conspiracy.
25 See, eg, Organisation for Economic Co-operation and Development, Algorithms and Collusion – Note by the United States (26 May 2017), www.ftc.gov/system/files/attachments/us-submissions-oecd-other-international-competition-fora/algorithms.pdf (noting a 1994 DOJ case where 'six airlines used a jointly owned computerized online booking system, the Airline Tariff Publishing Company (ATP), to communicate and set collusive airline fares').
26 The fine could balloon to US$81.5 million if the company was sold to a qualified purchaser. See Amended Plea Agreement at 6, 9, United States v Bumble Bee Foods, LLC, No. 3:17-cr-00249-EMC (ND Cal. 2 August 2017), www.justice.gov/atr/case-document/file/1005246/download.
27 See US Dep't of Justice, Bumble Bee CEO Indicted for Price Fixing (16 May 2018), www.justice.gov/opa/pr/bumble-bee-ceo-indicted-price-fixing.
28 Richard Vanderford, 'Bumble Bee CEO might have avoided charges if merger review had gone more smoothly, DOJ official says', MLex (6 June 2018), www.mlex.com/GlobalAntitrust/DetailView.aspx?cid=994937&siteid=191&rdir=1.
29 See US Dep't of Justice, School Bus Company Owners Sentenced to Prison for Bid Rigging and Fraud Involving Puerto Rico Public School Bus Services (6 February 2018), www.justice.gov/opa/pr/four-school-bus-company-owners-sentenced-jail-bid-rigging-and-fraud-involving-puerto-rico.
30 Fed. Trade Comm'n & US Dep't of Justice, Antitrust Guidelines for Collaborations Among Competitors at 3 (2000).
31 Although unclear from the Guidance as to the exact definitions, no-poach restraints generally include agreements between competitors to not solicit or hire the other company's employees. See Fed. Trade Comm'n & US Dep't of Justice, Antitrust Guidance for Human Resource Professionals at 3 (2016). No solicitation provisions focus on restraining aggressive recruiting tactics. Examples include agreements not to cold call or make counter offers to a competitor's employees. See Complaint at 3, United States v Lucasfilm Ltd, No. 1:10-cv-02220 (DDC 21 December 2010), ECF No. 1. However, as long as the firm does not engage in affirmative recruitment, non-solicitation provisions still allow firms to hire a competitor's employees under some circumstances (ie, the competitor's employee applies for a position with the firm out of their own accord). Conversely, general no-hire provisions do not allow hiring of a competitor's employee under any circumstances. See Complaint at 3–5, United States v eBay, Inc, No. 11-cv-1258690 (ND Cal. 16 November 2012), ECF No. 1. Due to the broader nature of no-hire provisions, it is more likely that such a restraint is not ancillary to a legitimate pro-competitive collaboration.
32 Fed. Trade Comm'n & US Dep't of Justice, Antitrust Guidance for Human Resource Professionals at 3 (2016). The DOJ stated that naked no-poach agreements eliminate competition in the same way as agreements to fix product prices or allocate customers, practices which have traditionally been criminally investigated and prosecuted as 'hardcore cartel conduct'. Id at 4. However, there is a lack of case precedent on the characterisation of no-poach agreements as 'classic' per se illegal restraints.
33 US Dep't of Justice, Assistant Attorney General Makan Delrahim, International Bar Association/American Bar Association Cartel Workshop (14–16 February 2018).
35 Leah Nylen, 'Number of no-poach agreements uncovered by DOJ "shocking," official says', MLex (17 May 2018), www.mlex.com/GlobalAntitrust/DetailView.aspx?cid=989839&siteid=191&rdir=1.
36 See US Dep't of Justice, Justice Department Requires Knorr and Wabtec to Terminate Unlawful Agreements Not to Compete for Employees (3 April 2018), www.justice.gov/opa/pr/justice-department-requires-knorr-and-wabtec-terminate-unlawful-agreements-not-compete.
37 US Dep't of Justice, Principal Deputy Assistant Attorney General Andrew C Finch Delivers Remarks at the Heritage Foundation (23 January 2018), www.justice.gov/opa/speech/principal-deputy-assistant-attorney-general-andrew-c-finch-delivers-remarks-heritage.
38 US Dep't of Justice, Assistant Attorney General Makan Delrahim, The Application of Competition Policy to Technology and IP Licensing, University of Southern California Gould School of Law (10 November 2017).
39 US Dep't of Justice, Acting Assistant Attorney General Andrew Finch Delivers Keynote Address at Annual Conference on International Antitrust Law and Policy (14 September 2017), www.justice.gov/opa/speech/acting-assistant-attorney-general-andrew-finch-delivers-keynote-address-annual-conference.
41 See id.
42 US Dep't of Justice, Makan Delrahim, What's Ahead in Antitrust?, The Law and Economics Center at George Mason University Antonin Scalia Law School (19 January 2018).
Originally published by Global Competition Review
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