Antitrust and Consumer Protection
Competition: Fall 2018, Vol 28, No. 1
Content
- Above Frand Licensing Offers Do Not Support a California Ucl Action In Tcl V Ericsson
- Antitrust Is Already Equipped To Handle "Big Data" Issues
- Antitrust, Privacy, and Digital Platforms' Use of Big Data: a Brief Overview
- Antitrust Treatment of the Introduction of New Drug Products: the Tension Between Hatch-waxman's Dual Goals of Cheaper Drugs and Better Drugs
- Applying Illinois Brick To E-Commerce: Who Is the Direct Purchaser From An App Store?
- Chair's Column
- D-Link Systems: Possible Signs For the Future of Ftc Data Security Enforcement
- Editor's Note
- Masthead
- Smart Contracts and Blockchains: Steroid For Collusion?
- The Difficulties of Showing Pass Through In Indirect Purchaser Component Cases
- The Hold-up Tug-of-war—Paradigm Shifts In the Application of Antitrust To Industry Standards
- "No-poach" Agreements As Sherman Act § 1 Violations: How We Got Here and Where We're Going
"NO-POACH" AGREEMENTS AS SHERMAN ACT § 1 VIOLATIONS: HOW WE GOT HERE AND WHERE WE’RE GOING
By Jiamie Chen1
I. INTRODUCTION
These days you can’t talk to an antitrust lawyer for three sentences without hearing about no-poach. But it certainly wasn’t always like that. The early cases challenging no-poach agreements as antitrust violations fought for each step into the courthouse, including to establish that horizontal agreements not to hire could in fact harm competition. Federal courts turned a corner in recognizing that the proper competitive harm analysis in no-poach cases should be aimed at competition in the labor market for the employees’ services rather than competition among companies in the industry. The punctuated equilibrium of evolving antitrust law entered the current phase of rapid development in the 2000s, when the first no-poach antitrust class actions came before federal appeals courts, and the Department of Justice Antitrust Division ("DOJ") at the same time took a sudden and keen enforcement interest in no-poach agreements. This pace has only accelerated in the intervening years and placed no-poach at the forefront of developing antitrust jurisprudence. But to best understand where this is all going, we need to take a look back, at where we started and how we got here.