Antitrust and Unfair Competition Law

Competition: Fall 2018, Vol 28, No. 1

"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.

II. HOW DID WE GET HERE? THE EARLY CASES

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