US Department of Justice (DOJ) and state antitrust enforcers continued to investigate alleged collusion between employers in labor markets in 2020, with the DOJ announcing in early January 2021 that it was pursuing criminal charges against a health care company for entering into a "no- poach agreement" with competitors not to solicit senior-level employees.
The DOJ had warned in 2016 in its Antitrust Guidance for Human Resource Professionals that the antitrust laws apply to competition among firms to hire employees and that the DOJ would bring criminal charges "against naked wage-fixing or no-poaching agreements." Companies cannot afford to take the DOJ's warning lightly.
"No poach" agreements will continue to be an antitrust enforcement priority for regulators, with the DOJ filing its first criminal charges against an employer in January 2021.
One important step companies can take to significantly reduce antitrust risk is by maintaining a robust antitrust compliance policy, supported by regular programs and trainings. On July 11, 2019, the DOJ announced a new policy that directs prosecutors to consider the adequacy and effectiveness of a corporation's compliance program at the charging stage, meaning that businesses that take antitrust compliance seriously may be able to avoid the worst consequences even if rogue employees violate the antitrust laws.
All companies can mitigate antitrust risk by maintaining a robust antitrust compliance policy, supported by regular programs and trainings.
Regulatory scrutiny of potentially anticompetitive effects resulting from the conduct of large technology companies expanded in 2020. Early in 2020, the Federal Trade Commission (FTC) announced that it had issued Special Orders to five large technology companies requiring them to provide information about prior acquisitions not reported to the antitrust agencies under the Hart-Scott-Rodino (HSR) Act to determine whether greater scrutiny is necessary to detect potentially anticompetitive acquisitions of nascent or potential competitors that fall below HSR reporting thresholds. Although the FTC's inquiry has so far been limited to technology companies, two FTC commissioners urged a broader examination of "stealth consolidation" across a variety of industries, including healthcare, pharmaceuticals, and hospital markets.
Companies in all sectors should expect that the FTC and DOJ may give more scrutiny to transactions that in the past might have easily cleared HSR review.
Finally, the parties in a number of major antitrust class action litigation matters reached settlements in 2020, including matters involving alleged price fixing in the packaged seafood market and collusion among various Blue Cross/Blue Shield insurance providers to suppress competition between those plans. Businesses are often members of these certified classes, and given the volume of their purchases in these markets, often can recover substantial sums from these settlement funds. Businesses should be on the lookout for court-ordered notices concerning these settlements to make sure they do not waive any rights. Businesses also should be skeptical of companies that offer to "assist" with the submission of claims; these companies often demand a substantial percentage of any recovery for their work, even though settlements are typically designed to make claims submission easy.
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