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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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On September 1, VDA OC, LLC filed a <a href="https://www.law360.com/articles/1526952/attachments/0">notice</a> with the federal court in Nevada stating that it intended to enter a plea of guilty to a conspiracy in restraint of trade in violation of Section 1 of the Sherman Act.&nbsp; Specifically, VDA stated that it will admit that it “participated in a conspiracy with another contract healthcare staffing firm to suppress and eliminate competition for the services of nurses by agreeing to allocate nurses and to fix the wages of those nurses.”&nbsp; Allocating nurses and fixing wages are viewed by the federal antitrust agencies as market allocation and price-fixing agreements, which are per se unlawful and may be prosecuted criminally.

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The imminent conviction of VDA would be the first in a criminal “no-poach” case obtained by the Antitrust Division of the Department of Justice (DOJ), which first announced its intention to criminally prosecute no-poach cases in 2016 through Antitrust Guidance for Human Resources Professionals issued jointly with the Federal Trade Commission (FTC).&nbsp; DOJ’s first criminal no-poach case was not brought until December 2020, four years after it issued its joint guidance with the FTC.&nbsp; Its no-poach prosecutions have not gone well, however, with its first two criminal no-poach trials resulting in full acquittals on the antitrust charges for each defendant.&nbsp; Despite the trial losses, DOJ insisted it would maintain its aggressive criminal enforcement, and the VDA guilty plea seems to be proof of that.

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As the DOJ and FTC continue to aggressively push antitrust enforcement in labor markets, in-house counsel, HR departments and other employees should be aware of the criminal prohibition of no-poach agreements and consider seeking guidance from experienced antitrust counsel and training to maintain compliance with the antitrust laws.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/09/Antitrust-Competition-and-Distribution-Update_DOJ-Set-to-Obtain-First-Antitrust-Conviction-in-No-Poach-Case.pdf

DOJ Set to Obtain First Antitrust Conviction in “No-Poach” Case

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