Tuesday, June 1, 2021
As reported here and here, in December 2019 and January 2020, the United States Department of Justice brought its first criminal charges against employers who entered into “naked” wage fixing agreements and no-poach (
e.g., non-solicitation and/or non-hire) agreements with competitors. According to DOJ’s 2016 Antitrust Guidance for HR Professionals, such agreements are “naked,” and, therefore, illegal
per se, because they are “separate from or not reasonably related to a larger legitimate collaboration between competitors
.” Although DOJ recognized that such agreements may not be illegal
per se when made in furtherance of legitimate joint ventures or business, it provided scant guidance on what it would deem to be a legitimate joint venture or collaboration. The Pennsylvania Supreme Court recently addressed the issue in