To hire or not to hire: U.S. cartel enforcement targeting employment practices

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In October 2016, the Antitrust Division of the Department of Justice announced its intention to thereafter—and for the first time—criminally prosecute “naked” no-poach and wage-fixing agreements. Fundamental fairness questions arise when the Justice Department expands the reach of its criminal enforcement program to penalize conduct with fines and jail terms that a few years ago was only subject to consent decrees,and where there has been no judicial review of its classification of such agreements as per se offenses under the Sherman Act.In light of the Justice Department’s recent statements referencing a pipeline full of cases,companies should expect to see cases testing the reach of per se criminal liability for no-poach and wage-fixing agreements.