No-Poach Agreement as Per Se Violations of the Antitrust Law

Summary

The United States Department of Justice (DOJ) is aggressively prosecuting employers who enter into no-poach agreements under the antitrust laws. A no-poach agreement is an illegal agreement between competitors in which they agree not to hire, recruit, or pursue each other's employees or not to match offers made by competitors. The agreements may be verbal or in writing and are often made without the knowledge of the employees affected by them. Until 2021, DOJ enforcement was civil in nature. A sea change occurred on January 7, 2021, when the DOJ announced that it indicted Surgical Care Affiliates, LLC and SCAI Holdings, LLC (together, SCA) on charges of orchestrating an antitrust conspiracy with two other healthcare providers, also operating outpatient medical centers—United Surgical Partners International, Inc. (USPI) and DaVita, Inc. See In re Outpatient Med. Ctr. Emp. Antitrust Litig., 2022 U.S. Dist. LEXIS 173925, at **8-9 (N.D. Ill. Sept. 26, 2022), citing United States v. ...