The DOJ Antitrust Division’s Spring Update touts a number of federal enforcement priorities that could impact your business. These include:
- No poach agreements: The DOJ Antitrust Division is actively pursuing investigations into so-called “no-poach” and wage fixing agreements between employers. For example, the DOJ Antitrust Division filed a civil antitrust lawsuit against two companies alleging they reached naked no-poach agreements, beginning as early as 2009 and continuing until at least 2015, in violation of Section 1 of the Sherman Act. The DOJ said “the settlement is a strong, first-of-its-kind settlement that contains several provisions intended to terminate each defendant’s no-poach agreements and prevent future violations.” The DOJ Antitrust Division also warns: “Market participants are on notice: the Division intends to zealously enforce the antitrust laws in labor markets and aggressively pursue information on additional violations to identify and end anticompetitive no-poach agreements that harm employees and the economy.”
- Merger challenge wins: The DOJ Antitrust Division filed civil lawsuits – and won – against companies in a number of different markets, including organic milk, refinery process chemicals used in the oil and natural gas industries, and crop protection and seed treatments. All of the lawsuits challenged mergers with competitors and required divestiture of certain entities for the mergers to proceed. In a DOJ action in a fourth industry relating to sonobuoys, the only two companies qualified to supply sonobuoys to the U.S. Navy abandoned their merger after the DOJ Antitrust Division expressed concern about a loss of competition the department alleged would have resulted from this merger.
- Criminal antitrust investigations: The DOJ has increased its focus on investigations into collusion in key industries for American consumers, such as international shipping services, the financial industry, electrolytic capacitors, and packaged seafood. These investigations focus on bid rigging, price fixing, market allocation, and related offenses. Additionally, the DOJ says “other high-priority matters, in key industries for American consumers, are in relatively early stages of investigation.”
- Record number of criminal antitrust trials and jail time: In the past year, a record-setting number of criminal cases went to trial, and the Antitrust Division obtained the highest number of individual prison terms imposed since 2012. A number of criminal trials also are proceeding in the next few months.