United States: Private Antitrust Litigation in the Labour Market

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Over the past few years, labour markets in the United States have faced increased antitrust scrutiny. In July 2021, the Biden administration, through its Executive Order on Promoting Competition in the American Economy, announced its intention to focus on competition in labour markets.[1] In December 2021, special assistant to the president, Tim Wu, speaking at the Department of Justice (DOJ) and Federal Trade Commission (FTC) joint Public Workshop on Promoting Competition in Labor Markets, reiterated the White House’s focus on market power and fairness in labour markets, including low-wage worker mobility and the ability to negotiate for higher wages.[2] Also at the workshop, FTC chair, Lina Khan, advocated for enhanced federal agency rule-making to curtail perceived anticompetitive practices in labour markets.[3] In short, antitrust regulation and enforcement in labour markets has intensified, including a rise in antitrust criminal prosecutions. This emphasis is expected to grow in 2022 and beyond, and is leading to developments in private antitrust litigation in US courts as well.[4] This article examines the parallel development of US government enforcement and private antitrust litigation relating to labour markets, with a focus on three increasingly important topics for stakeholders: no-poach agreements; non-compete agreements; and agreements to fix wages.