I attended the 2021 ABA Antitrust Law Section Spring Meeting that was held over March 22-26, 2021.  Once again, and hopefully the last time, the meeting was held virtually but it was as good as a virtual meeting could be in my humble opinion.  The programs and structure were pretty much the same as the in-person Spring Meeting with a wide range of topics.  While I tend to favor the cartel related programs, I never miss what is titled “The Chair’s Showcase.”  This program always features thought leaders in the field who work hard to put on an engaging panel.  This year was no exception.  The current big cases like Google and Facebook, the plethora of antitrust related Congressional hearings and proposed legislation and the new (or more heard voices) in the field remind me of when I first started in antitrust in 1980.  At that time the Chicago school was upending much of what I had just learned in law school about antitrust.  Now, the Chicago School is facing a serious challenge.  I do not know what the future of antitrust is [I’m a simple cartel guy and the per se rule has enabled me to get by on limited brainpower] but I am excited as heck to watch it unfold.  Below is the program outline from the ABA materials–and the program delivered.

The Chair’s Showcase: The Future of Antitrust

 Description

Antitrust is at an inflection point. Voices across the political spectrum are asking: Is new antitrust legislation needed? If so, what should it look like? The Chair’s Showcase is the culmination of the Section’s yearlong exploration of the theme of The Future of Antitrust. Hear from these thought leaders about the prospect of legislative reform and what it might mean for antitrust enforcement.

             It was a great program and the 70^th Annual Antitrust Spring Meeting next year promises to be a most memorable event.  The virus will be gone (hopefully) and I will still be here (again, hopefully) so I am already looking forward to this event.

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Speaking of excellent programs, I’d also like to put a plug in for the California Lawyers Association Antitrust and Unfair Competition Law Section annual program–the Golden State Institute:

31st Annual Golden State Institute

Please save the date for the 31st Annual Golden State Institute on November 17-18, 2021!

This annual marquee event sponsored by the Antitrust and Unfair Competition Law Section promises expert panels on front page issues and cutting-edge legal developments, along with the unrivaled socializing and networking opportunities the Antitrust and Unfair Competition Law Section is renowned for. 2021 also marks the return of the Section’s star-studded California Antitrust Lawyer of the Year events. Don’t miss out!

Bob Connolly   bob@reconnollylaw.com

The Department of Justice’s Antitrust Division today issued the 2021 edition of its annual Spring Newsletter. The newsletter highlights the division’s recent activities and successes on civil and criminal enforcement, diversity initiatives, international cooperation, and competition advocacy.  The newsletter highlights the division’s accomplishments and features profiles of division staff. It can be found at https://www.justice.gov/atr/division-operations/division-update-spring-2021.

With respect to Criminal Enforcement, the newsletter contains the following bullets:

• Generic Drugs Investigation Targets Anticompetitive Schemes
• PCSF Expansion and Early Success
• Investigation Into Procurement Irregularities at the Department of Energy Strategic Petroleum Reserve Results in Guilty Plea and Indictment 
• North Carolin Drainage Investigation Leads to Grand Jury Indictment for Bid Rigging and Fraud. 

ADDITIONAL NOTE From ABA Antitrust Section Spring Meeting

At the ABA Antitrust Spring Meeting today, Marvin Price, Director of Criminal Enforcement, Antitrust Division, USDOJ emphasized that labor market cases (wage fixing and allocation agreements) continue to be  high priority for the Division.  Mr. Price noted that these collusive employer agreements cause real harm to employers who are directly affected in the wages they earn or the opportunities open to them.  I couldn’t agree more!  See, Cartel Capers, April 18, 2018,  Employee No-Poach Agreement Compliance Message:  Knock it Off!  Now!!; Cartel Capers, December 17, 2020 A Look Back at the Road to the Antitrust Division’s First Criminal Wage-Fixing Case.

Thanks for reading.

Bob Connolly    bob@reconnollylaw.com

The last several Antitrust Division, DOJ press releases for criminal case filings may appear to be out of place if you are not familiar with the history of Division’s occasional foray into bringing non-Sherman Act cases.  None of the last four criminal cases brought by the Division contain a charge of violating the Sherman Act:

• South Korean National Pleads Guilty to Scheme to Defraud U.S. Department of Defense   DOJ Press release:      March 11, 2021

“From at least as early as February 2015 until at least June 2018, Jo submitted hundreds of falsified or materially altered laboratory reports, misrepresenting to U.S. military officials that laboratory testing and analysis had been performed on samples taken from U.S. military installations located in South Korea, when, in many cases, no such testing was performed. As part of the scheme, Jo emailed the forged laboratory reports and invoices seeking payment for those reports to the Department of Defense, causing the Defense Financial Accounting Service to wire more than $280,000 in payments.”

• Construction Company Owners Pleaded Guilty to Defrauding Federal Program Intended for Service-Disabled Veteran-Owned Small Businesses    DOJ Press Release:      March 5, 2021

“Michael Wibracht of San Antonio, Texas, the former owner of several companies in the construction industry, conspired to defraud the United States in order to obtain valuable government contracts under programs administered by the U.S. Small Business Administration (SBA) for which neither his nor his co-conspirators’ companies were eligible. One co-conspirator, Ruben Villarreal, also of San Antonio, pleaded guilty on Nov. 20, 2020, to participating in the same conspiracy.”

• Louisiana Man Charged With Conspiracy to Defraud the Government and Violate the Procurement Integrity Act and Lying To Federal Agents   DOJ Press Release:      February 25, 2021

“According to the indictment, Guillory conspired with Cajan Welding & Rentals, Ltd., and other unnamed co-conspirators to defraud the United States by corrupting and impairing the government procurement process, and by obtaining non-public pricing and cost information in order to obtain subcontract awards and payments from the U.S. Department of Energy in connection with its operation of the nation’s Strategic Petroleum Reserve.”

• Foreign-Language Training Companies Admit to Participating in Conspiracy to Defraud the United States     DOJ Press Release:      January 19, 2021

“According to court documents, as part of the conspiracy, Berlitz and CLCI facilitated the submission of false and misleading bid information to the NSA.  As a result, competition was suppressed among legitimately qualified bidders for the contract, obstructing, by dishonest means, the government’s ability to benefit from a competitive bidding process.”

The Antitrust Division and Non-Sherman Act Cases

            Within the Department of Justice, the Antitrust Division is charged with bringing Sherman Act cases.  For criminal cases that is usually 15 U.S.C. § 1.  The United States Attorney’s Office and the Criminal Division of the USDOJ have jurisdiction over all other crimes in Title 18 of the U.S. Code.  The FTC does not have authority to bring criminal cases.  These lines, however, are not inflexible.  The Antitrust Division has typically brought criminal  charges for obstruction/perjury offenses related to one if its investigations.  The Antitrust Division, as far as I recall, also started added mail fraud counts in the early days of the road construction cases in the late 1970’s.  The fraud counts were related to the bid rigging such as the mailing of invoices for payment on a bid fraudulently obtained.  The Division also often adds Conspiracy to Defraud the United States (18 U.S.C. § 371) counts in bid rigging cases where the victim was the United States government.  Since bid rigging is a form of fraud, almost any bid rigging case allows for related Title 18 charges.  When these counts are added it is typically to highlight the fraudulent nature of the scheme to a jury, and to possibly obtain higher jail sentences.  The downside of adding fraud counts is that fraud charges require proof of specific intent, a higher bar than the general intent required under the Sherman Act. There are also occasions when the United States Attorney’s office charges a bid rigging scheme without a Sherman Act count, as a conspiracy to defraud.  This may happen when there is also some public corruption involved in the scheme.

There have also been other occasions where the Antitrust Division may bring a criminal charge unrelated to the Sherman Act.  If the Division conducts an investigation which uncovers a federal crime unrelated to competitor collusion a decision may be  made, with the blessing of the relevant United States Attorney’s office, to bring the case. During my time with the Antitrust Division I was involved in a tax fraud case and a charge of obliterating the foreign markings from goods that were then sold to the US government as made in the USA.  Obviously these charges were far afield from bid rigging but once the conduct was discovered it was more efficient to have the Division lawyers handle the case–and there was hope that the leverage might induce a witness to cooperate. These kinds of cases, however, occur infrequently.

Something else is at work, however, with the recent string of non-Sherman Act cases brought by the Division.  In 2019, the Antitrust Division established the Procurement Collusion Strike Force:  a coordinated national response to combat antitrust crimes and related schemes in government procurement, grant, and program funding at all levels of government—Federal, state, and local.  A feature of the program is outreach to federal agents across the gamut, FBI, Defense Dept investigators, EPA, etc.  Division lawyers talk to agents and procurement officials about criminal antitrust violations, what some of red flags are, and maybe most importantly, that Antitrust Division lawyers are interested in leads and will work with the agents to try to develop cases.  What often happens, however, is that agents have leads on some other form of bidding corruption (i.e. bribes to a procurement official) which are pursued in the hopes that evidence of competitor collusion will also develop.  Sometimes that happens, often it does not.  As mentioned above, sometimes with the blessing of the relevant US Attorney’s office, the Antitrust Division will bring the non-Sherman case with the justification that, like competitor collusion, the conduct at issue involves “corruption of the bidding process.”  And occasionally, as mentioned above, a criminal violation is uncovered that is not even related to bidding, but if indictable evidence was gathered, the case is brought.  I assume the case above where the South Korean was charged with submitting fraudulent test results fits into this category.  Once an agent has devoted her time to developing an indictable case, barring some unusual circumstances, that case will/should be brought or you will not hear from that agent again.

There are pros and cons to an aggressive government procurement effort. The current Procurement Fraud Strike Force is essentially a rebranding of previous such efforts.  A similar effort was made in the Obama Administration after the financial crisis of 2018, called the Recovery Act Initiative, aimed at training government officials to prevent, detect, and report efforts by individuals to unlawfully profit from the stimulus awards.  The Division has also participated in broader DOJ procurement fraud task forces such as the Hurricane Katrina Task Force.  In October 2006, the DOJ formed, and the Division participated significantly in a similar National Procurement Fraud Task Force, which successfully targeted U.S. military procurement fraud related to conflicts in Iraq and Afghanistan. In less than three years, the efforts of the National Procurement Fraud Task Force led to more than 35 criminal convictions. Moreover, before the number of field offices was drastically cut during the Obama administration, field offices and the DC based criminal section, as a matter of course, aggressively worked with agents to try to develop procurement fraud cases.  This effort is described in a document the Antitrust Division submitted to the OECD: OECD Roundtable on Public Procurement Outreach and Training.  While the emphasis has varied in intensity over time, government procurement cases have always been a significant focus of the Antitrust Division.

The Pros and Cons of Bringing Non-Sherman Act Cases

            The benefits of bringing the Antitrust Division bringing non-Sherman Act cases are many.  Briefly, an obvious reason for bringing such cases is that there is more than one way to defraud the government–and if indictable evidence is developed, a case should be brought as a matter of public policy. Bringing non-Sherman act cases, especially those that can rightly be characterized as “corruption of the bidding process” are a near necessity in a functioning relationship with investigative agencies since investigating collusion will often lead to evidence of other crimes.  Agents rightly want all indictable cases brought and will not look to the Division as partner if only Sherman Act cases are brought.  Sometimes it is appropriate to transfer and non-antitrust case to the US Attorney’s Office but it is often more efficient to leave the matter with the staff that helped develops the case.  These types of cases are also excellent training for Division attorneys.  They tend to be smaller cases with less meddling, (I mean oversight) from the front office.  The staff appreciates the sense of ownership  that comes from developing a case and seeing it to the end.  Also, speaking for myself, as a taxpayer I was particularly interested in prosecuting cases where tax money was pilfered by fraud.

The arguments against bringing non-Sherman Act cases, and one that has carried the day at times, is that it is not an efficient use of Antitrust Division resources.  Even small cases can consume large resources.  The rationale for a separate Antitrust Division is to develop expertise in that area and when the Division strays from its fundamental purpose it can undercut the reason for the Division’s separate existence.  It can also make requests for funding more difficult if it appears there is excess capacity in the Division such that non-Sherman Act cases can be pursued.

Balance is the Best Policy

            During my tenure in the Antitrust Division there were various policies with respect to bringing non-Title 18 cases.  The norm was that you could not open a grand jury investigation without a legitimate lead involving competitor collusion.  If, however, during the investigation another violation became readily indictable, that case would be pursued–after consulting with the relevant US Attorney’s office.  At other times, such as with the establishment of a procurement task force, the door for opening a grand jury became a little wider: not necessarily collusion between competitors but “corruption of the bidding process.”

Unfortunately (from my perspective) on at least two occasions while I was Chief of the Philadelphia Office, the front office did a complete turn around and ordered all non-antitrust investigations closed.  The rationale was that if we had available resources they should be deployed to larger cartel cases, and if we didn’t have larger cartel cases, the resources should be deployed looking for them. The main problem with this change of course was that after spending time and resources developing relationships with agents, and developing cases, everything was dropped.  This was not good for morale, either with Division attorneys who felt blindsided or with investigative agents who felt, justifiably, that their efforts were for naught.

I’m interested to see how the new administration views the current Procurement Fraud Strike Force.  I hope the emphasis on collusion in government contracting will remain.  Depending on the workload of the Division, it may be that marginal non-Sherman Act cases will be dropped, or significant ones handled by the US Attorney’s office.  Tweaks in resources allocation, however, can be made without abandoning the entire focus on government procurement. With trillions of dollars being pumped into the economy, the potential for government procurement fraud remains high.

The best way to insure the continuation of the government procurement effort is to maintain a vigorous enforcement against cartels that target the consumer in general.  Sandwiched between the press releases announcing non-Sherman Act criminal case filings was this press release:

First Corporation Pleads Guilty in Ongoing Criminal Antitrust Investigation into the Broiler Chicken Industry

DOJ Press Release:      February 23, 2021

“Pilgrim’s Pride Corporation (Pilgrim’s), a major broiler chicken producer based in Greeley, Colorado, has pleaded guilty and has been sentenced to pay approximately $107 million in criminal fines for its participation in a conspiracy to fix prices and rig bids for broiler chicken products, the Department of Justice announced today.”

As long as the Antitrust Division is actively bring the intentional/national cartel cases, there should be room for the government procurement cases to continue as well.

Bob Connolly   bob@reconnollylaw.com

[I am aware that I post often about the desirability of criminal antitrust whistleblower incentives. The blog post below relates to an article I had published recently in Law 360.  Not everyone subscribes to Law 360, which I recommend, so I have excerpted a small portion in this blog post.]

There are a number of reasons to expect  increased criminal antitrust enforcement in the new administration.  One reason may be the activity in the pipeline from the previous administration. The Antitrust Division has reported a very robust number of active grand jury matters. The Procurement Strike Force has been underway for some time–and it takes times to see the full effect of those efforts. It can also be expected that the Antitrust Division will see a reasonable, and perhaps significant increase in funding. The antitrust reforms proposed by Senator Amy Klobuchar call for  significantly greater resources for the Antitrust Division.  See https://cartelcapers.com/blog/senator-klobuchar-unveils-wide-ranging-antitrust-enforcement-legislation/.  And the COVID pandemic, unfortunately, may be providing temptation for collusion.  As of September 1, 2020, roughly $2.59 trillion in new budgetary resources have been made available for federal agencies to respond to the pandemic. President Biden is seeking an additional $1.9 trillion. The Antitrust Division has long recognized that times of crisis can bring out the best, and worst, in companies and people. In the aftermath of Hurricanes Harvey and Irma in 2017 the Antitrust Division and FTC issued a joint statement on Antitrust Guidance that included this: “While natural disasters often bring out the best in human compassion and spirit, they can also lead to unscrupulous individuals and organizations taking advantage of those in need.”

This is an ideal time to add  another tool for exposing covert conspiracies to the Antitrust Divisions’ arsenal: legislation that gives the Antitrust Division the same whistleblower incentives that has skyrocketed SEC prosecutions.  I recently had an article published on Law 360, DOJ Should Take Cue From SEC On Whistleblower Incentives.  The article describes a hypothetical situation facing a potential criminal antitrust whistleblower given the current situation of no potential financial reward:

But, to illustrate why a cartel whistleblower statute — bait — is needed to lure little fish, consider hypothetical Bill. Hypothetical Bill was recently hired as director of marketing for a large regional hospital system. Shortly after he started, the hospital CEO told Bill that there is an understanding with other health care providers to “stay in their lanes” in terms of patient services. This, according to the CEO, is done to provide more efficient services to patients. Bill is given a handwritten list of his counterparts and told to call and introduce himself. After making a round of calls and getting together for one meeting, Bill begins to understand that this is illegal collusion.

Bill consults a lawyer who tells Bill he can represent him and contact the government and he will likely be able to negotiate an immunity/cooperation agreement. But negotiations take time and likely require multiple trips by Bill and his lawyer to visit the prosecutors for interviews. This will be expensive. Obviously Bill’s employer will not be paying for his travel, lawyer fees, etc.

The Antitrust Division may ask Bill for emails/records to corroborate his story. Bill may be called upon by state authorities to appear for interviews. Besides the time and expense of cooperation, Bill’s attorney tells him he will likely be fired by the hospital when it learns of his cooperation — after all, it is shocked he was talking to competitors. Bottom line: “Bill, going to the government will incur hefty legal fees, possibly make you non-employable in your field and be a very unpleasant experience. What would you like to do?” Bill will almost certainly not expose the collusion. He could go to the hospital’s compliance counsel, but, since the CEO is involved in the illegal activity, Bill is guessing that he, not the CEO, will regret his internal reporting. At best, Bill will leave his job, get out the situation and keep quiet. Most likely, Bill will think of how his family needs the money from the new job, stay in the job and hope for the best. After all, even if the collusion gets exposed some other way, isn’t there a chance he could get immunity then? And, if Bill is a bit delusional, he may think, “”I was just following orders; the hospital will take care of me if anything happens.” Bottom line: Bill does not expose the cartel.

Now, imagine the Antitrust Division enjoyed SEC-like tools to encourage whistleblowers. Bill’s lawyer friend tells him that many of the bad things that can happen to a whistleblower may happen to Bill anyway, but the lawyer will work on a contingent fee basis and Bill may recover a substantial financial award if a case is successfully brought. Bill may even be able to stay anonymous throughout the entire process. The government will likely grant immunity in return for Bill’s full cooperation, which may even include asking Bill to record conversations. Since Bill’s potential award is based on the level/value of his cooperation and risk, Bill has an incentive to consider this cooperation.

In this scenario, Bill decides to cooperate and become a whistleblower. He gives the Antitrust Division what it needs to obtain a search warrant on Bill’s hospital. With a warrant in its pocket, the Antitrust Division asks for a meeting with the hospital’s counsel. At the meeting, government lawyers explain that the hospital has 3 days to get a leniency marker in before the investigation goes public and search warrants are executed. The hospital folds, the CEO, previous director of marketing and other hospital employees agree to cooperate under the leniency.

Bill’s cooperation as a whistleblower is never known, except by his banker if cases are brought and fines imposed. Of course, things may not always work out so well. The Antitrust Division will often receive nonactionable information. In some case, however, such as large international cartels with many potential whistleblowers, the results may be spectacular.

Is this an unrealistic example?  I don’t think so.  Senator Klobuchar’s sweeping proposals call for the establishment of antitrust whistleblower rewards.  I look forward to discussion in the coming months about whether incentives for criminal antitrust whistleblowers is a good idea, and if so, what the legislation should look like.

Thanks for reading.

PS        The Criminal Antitrust Anti-Retaliation Act became law at the end of 2020, but, while  helpful, standing  alone it will not do much to incentivize whistleblowers. See, https://cartelcapers.com/blog/an-update-on-criminal-antitrust-whistleblower-legislation/.

Bob Connolly   bob@reconnollylaw.com    LinkedIn

The ABA Antitrust Law Spring meeting will, unfortunately, be virtual again this year.  This is disappointing to me as I have gone every year for, well, a very long time. I enjoy seeing old friends, making new ones, and getting away for a few days to DC. But as I was looking through the meeting program, a silver lining jumped out to me–especially for students.  Because the meeting is virtual, the program cost is greatly reduced for everyone.  For students it is just $25 until 2/5 (today) but only $50 thereafter. And, of course, there are no travel expenses.

If you are a student interested in antitrust, or just interested in learning more about antitrust and big tech, merger law and/or many other subjects that are currently in the news, this is a great opportunity to participate/learn in a uniquely economical way.  I love the ABA Spring Meeting for the diversity in topics and the quality of the panels. I always leave the Spring Meeting in awe of how smart and committed to competition this group is and how lucky I am to be a part of it.  Given the “low barriers to entry” I wanted to suggest students consider this opportunity. It may lead you to a career in a field you’ll never regret.

https://bit.ly/2JQgZpz?fbclid=IwAR3RMnEIhCmiejDZO_JmP9_CBMPqFQHtA0eD0jyQbQQT8VKMW4THDnvyl2s

Hope to see you on line.

By Robert Connolly   bob@reconnollylaw.com  LinkedIn

These are exciting times for someone (me) obsessed with the idea that there should be financial rewards available for individuals who blow the whistle on antitrust crimes.  Yesterday I submitted an article to a publication that will appear in the next day or two entitled, “When Fishing for Antitrust Cooperation, It’s Good to Have Bait.”  Today there are reports of new proposed legislation to be introduced by Senator Amy Klobuchar.  See e.g., Ryan Tracy, Wall Street Journal, February 4, 2021,  Klobuchar to Introduce Antitrust Bill Raising Bar for Technology Deals (here) (“The senator plans to introduce legislation that would bar companies that dominate their sectors from making acquisitions unless they can prove their deals don’t “create an appreciable risk of materially lessening competition’”); Lauren Feiner, CNBC, February 4, 2021, Klobuchar Unveils Sweeping Revamp of Antitrust  Enforcement (here) (“Sen. Amy Klobuchar, D-Minn., unveiled a sweeping antitrust reform bill on Thursday, setting a tough tone as she becomes chair of the Senate Judiciary subcommittee on antitrust.”)

Senator Klobuchar’s CALERA Bill Summary states, among other things, that the legislation:

• would authorize $300 million increases to each agency’s annual budget, providing $484.5 million to the Antitrust Division and $651 million to the FTC.
• would restore the original intent of Section 7 of the Clayton Act, which was designed stop anticompetitive mergers in order to address competitive problems in their “incipiency” before they ripened and caused harm.
• defines several categories of mergers that pose significant risks to competition and shifts the legal burden to the merging parties to prove that mergers falling into those categories do not create an appreciable risk of materially lessening competition or tend to create a monopoly or monopsony.
• creates a new provision under the Clayton Act to prohibit “exclusionary conduct” (conduct that materially disadvantages competitors or limits their opportunity to compete) that presents an “appreciable risk of harming competition.”
• and to my delight: “establish a bounty system to reward criminal whistleblowers for providing evidence in antitrust cases resulting in the collection of a criminal fines.”

             This is sweeping proposed legislation with severable components. Criminal antitrust whistleblower legislation should be a high priority.  There are at least three trends that make this reform imperative:

            1)  As of September 1, 2020, roughly $2.59 trillion in new budgetary resources have been made available for federal agencies to respond to the pandemic. President Biden is seeking an additional $1.9 trillion.  This is an unprecedented level of federal spending and contracting.

2)  The Antitrust Division has established a Procurement Collusion Strike Force with an information page (here).   There is a “Report Possible Violations” heading with a link to “Report COVID-19 Procurement Collusion” and to “Report Other Procurement Collusion.”  Currently, other than being a good citizen, there is no incentive to offset the likely reluctance to “getting involved” in a federal investigation.

3) When fishing for whistleblowers, it’s good to have bait.  A potential whistleblower reward could reenergize criminal antitrust enforcement, See Cartel Capers, April 9, 2018, It’s A Crime There Isn’t a Criminal Antitrust Whistleblower Statute.

A whistleblower can currently file a qui tam suit under the False Claims Act and receive a financial reward if the government collects damages for bid rigging on federal contracts (see e.g. Cartel Capers, February 1, 2021 An Update on Criminal Antitrust Whistleblower Legislation.  The FCA can be a useful tool for exposing cartels that rig bids on government contracts but it is no substitute for a criminal antitrust whistleblower rewards.  An FCA case is only an option when the government is the victim of collusion.  The false claims are invoices for payments submitted to the United States on contracts that were fraudulently obtained through bid rigging.  If  private contracts are rigged or prices fixed, there are no false claims submitted to the United States, and thus no potential FCA case. Also, even on government contracts, a potential whistleblower may have critical information to start an investigation but not enough, or the personal fortitude, to file a False Claims Act suit.  Lastly, whistleblower legislation can provide a level of confidentiality to a whistleblower that does not exist when a False Claims Act case is filed (while an FCA case is initially filed under seal, eventually the case, and the names of the plaintiffs, can become public).  It can be emotionally and financially draining to be a whistleblower.  Some financial incentive  for coming forward is needed.

The legislation envisioned by Senator Klobuchar is ambitious and passage is no sure thing.  But I hope all parties can rally around the need for criminal antitrust whistleblower rewards.

Robert E. Connolly   bob@reconnollylaw.com  LinkedIn

             On Dec. 23, 2020, the Criminal Antitrust Anti-Retaliation Act (the “Act”), finally became law.  The legislation had passed in the Senate several times previously but until this last  Congress, had never been brought up for a vote in the House.  Congratulations to Senators Grassley and Leahy for their persistent advocacy for this legislation.

The Act prohibits employers from retaliating against certain individuals who report criminal antitrust violations.  It allows an individual to file a retaliation complaint with the Secretary of Labor it they are retaliated against for reporting to the federal government information about what they believe to be criminal violation of the antitrust laws.  The remedies include reinstatement, back pay and special damages including litigation costs, expert witness fees and reasonable attorney fees.  This is a positive piece of  legislation.  As discussed below, however, without the potential of a financial reward for being a whistleblower, this legislation alone is unlikely to encourage anyone to come forward.  But, the Act shows that Congress understands the power of whistleblowing, including on criminal antitrust violations, and further legislation will hopefully follow.

The picture facing a potential whistleblower for an antitrust violation is confusing. In the broad sense of “whistleblowing” anyone can make a complaint to the Antitrust Division about what they think might be anticompetitive conduct.  The Antitrust Division has a “Report Violations” page on its website (“Your e-mails, letters and phone call could be our first alert to a possible violations of the antitrust laws and may provide the initial evidence need to begin an investigation.”).  But when it comes to possible whistleblower rewards (i.e. a financial reward  for a successful outcome resulting from the whistleblower’s information), there are several statutes in play.  There is a serious gap in the law because whether a whistleblower can receive financial compensation for reporting a criminal antitrust violation (price fixing bid rigging, market allocation) depends upon whether the victim of the fraudulent scheme was a government entity  or private individuals.

This anomaly is best shown through the Antitrust Division’s criminal cases against South Korean fuel oil dealer who rigged bids on  DOD contracts in South Korea.  In November 2018 the Antitrust Division announced that three South Korean oil refiners had agreed to plead guilty and to enter into civil settlements for rigging bids on United States Department of Defense Fuel Supply Contracts (here).  The investigation was started by a whistleblower filing a False Claims Act case.  The DOJ press release noted, “The United States’ False Claims Act civil investigation resulted from a whistleblower lawsuit filed under the qui tam provisions of the False Claims Act.  Those provisions allow for private parties to sue on behalf of the United States and to share in any recovery.” Claims submitted for payment are “false” if the underlying contract has been fraudulently obtained by rigged. The government has entered into civil settlements of $205 million.  DOJ  Press  Release April 8, 2020 DOJ Agrees to Civil Settlement with Additional Firm Involved in Bid Rigging and Fraud Targeting Defense Department Fuel Supply Contracts for U.S. Military Bases in South Korea.  While the amount awarded to the whistleblower[s] who initiated the investigation is not known, at 15-25% of the total recovery, there was ample reward for coming forward and exposing the scheme.

Suppose, however, the fuel oil dealers fixed prices on contracts on commercial buildings in the United States.  While this would be a criminal price fixing violation of the Sherman Act, there would be no ability for a whistleblower to collect a reward for coming forward.  Being a whistleblower can be a career killing act of public service; a life altering event–and not in a good way.  A criminal antitrust whistleblower is likely to have  criminal exposure if he was involved in the  cartel so the  ability to hire a lawyer on a content fee basis  is crucial.  It  is likely No Potential Reward = No Whistleblower. 

            There is no statute to incentivize criminal antitrust whistleblowers that mirrors the SEC’s powerful Dodd-Frank whistleblower legislation which allows whistleblowers who come forward to the SEC to share between 10 and 30 percent of the government’s total monetary recovery, if any. The effectiveness of the SEC program has exceeded expectations in terms a flood of new fraud cases brought to the SEC by individuals willing to stick there neck in return for the possibility of financial incentives offsetting the risks of being a whistleblower.  See SEC Whistleblower Program Ends Record-Setting Fiscal Year With Four Additional Awards, SEC Press Release, September 30, 2020.

The Criminal Antitrust Anti-Retaliation Act is a welcome start towards protecting criminal antitrust whistleblowers.  Further reform is needed to mirror the financial incentives provided by Dodd-Frank for securities violations and the False Claim Act where the government is the victim of fraudulent schemes.   Why should there be financial incentives for whistleblowing if the federal government is the victim of bid rigging, but not if private entities are the target?  There shouldn’t be.  Another point worth highlighting is that there may be many potential whistleblowers who have valuable information  that could form the basis for an Antitrust Division grand jury or search warrant, but not enough to file a False Claims Act case.  This potential whistleblower may well remain silent, even on government contracting fraud.  The False Claims Act can be effective in certain circumstances but also a cumbersome and public tool compared to the SEC whistleblower incentives and anonymity protections.  Criminal antitrust whistleblower legislation that mirrors the SEC legislation could revitalize criminal enforcement in a way not seen since the revised Corporate Leniency Policy of 1993.  Often companies who consider coming forward for leniency decide against it because the collateral consequences can be so severe.  The threat of an individual whistleblower coming forward would reduce the likelihood of  potential corporate leniency applicant turning away from that decision. So come on President Biden, Congress and AG Garland, let’s keep the whistleblower ball rolling and complete the criminal antitrust whistleblower legislation.

In the two decades I was deeply involved in the Crazy Eddie fraud, the only threat made us lose sleep at night was the possibility of a whistleblower blowing the lid on our crimes. Consistent studies by the Association of Certified Fraud Examiners have shown that most frauds are exposed by whistleblowers, far ahead of frauds exposed by any other source  Sam E. Antar, Former Crazy Eddie CFO, former CPA, and a convicted felon. quoted in, Henry Cutter,  SEC Seeks Right to Cut Whistleblower Bounties, Wall Street Journal, June 29, 2019, (comment by Sam E. Antar, Former Crazy Eddie CFO, former CPA, and a convicted felon).

For further reading see, It’s  a Crime There Isn’t a Criminal Antitrust Whistleblower Statute, Antitrust Law Daily, April 2018

Makan Delrahim, USDOJ Assistant Attorney General for the Antitrust Division, tendered his resignation effective January 19, 2021.  Mr. Delrahim has led Antitrust Division for three and a half years.

Most people who practice antitrust law are passionate about the field and grateful to work with other such dedicated professionals.  If you have a career in antitrust, chances are high that you agree with what the Supreme Court stated:

The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.  Northern Pacific Railway Co. v. United States, 356 U.S. 1, 4-5 (1958).

Mr. Delrahim is one of the passionate advocates in the field.  He has played an extremely important and challenging role in leading the Antitrust Division.  In his resignation letter Mr. Delrahim outlined the many achievements of the Antitrust Division under his leadership.  I invite everyone to read his letter. Delrahim_Resignation_Ltr.

Congratulations Makan.  Thank you for continuing the tradition of excellence and public service at the Antitrust Division.  Best of luck in your future endeavors.

Bob Connolly  bob@reconnollylaw.com.

On January 5, 2021, a federal grand jury returned an indictment charging a criminal violation of the Sherman Act based on an agreement not to poach each other’s employees.  US. v. Surgical Care Affiliates LLC and SCAI Holdings, LLC, Case 3:21-cr-00011-L, filed January 5, 2021 (N.D. Texas)(SCAI Holdings is the successor corporation to Surgical Care Affiliates). This is the Antitrust Division’s first criminal case targeting employee no-poach agreements between competitors.  According to the DOJ Press Release:

The indictment, filed in the U.S. District Court for the Northern District of Texas, Dallas Division, charges SCA with entering into and engaging in two separate bilateral conspiracies with other health care companies to suppress competition between them for the services of senior-level employees, in violation of the Sherman Act.  Beginning at least as early as May 2010 and continuing until at least as late as October 2017, SCA conspired with a company based in Texas to allocate senior-level employees by agreeing not to solicit each other’s senior-level employees.  Beginning at least as early as February 2012 and continuing until at least as late as July 2017, SCA separately conspired with a company based in Colorado to allocate senior-level employees through a similar non-solicitation agreement.

The SCA indictment follows on the heels of a December indictment of the former owner of a Dallas area therapist staffing company for participating in a wage-fixing conspiracy for therapists (here).  On the surface at least, the two cases appear to be unrelated. But, the cases demonstrate that collusive agreements that restrain, limit or suppress competition for employees, especially in the health care industry, are an Antitrust Division priority.

The SCA indictment contains various examples of the alleged agreement.

• The earliest example is a May 14, 2010 Company A email stating, “I had a conversation w [Individual 1] re people and we reached agreement that we would not approach each other’s proactively.”
• The indictment alleges that on or about November 1, 2013, employees of Company A discussed whether to interview a candidate employed by SCA in light of the “verbal agreement with SCA to not poach their folks….”
• The latest example of the agreement referenced in the indictment is “ believing a candidate to be employed by SCA, a human resources employee of Company A emailed a recruiting coordinator for Company A on or about July 17, 2017, that although the candidate ‘look[ed] great’ she ‘can’t poach her.’”

The 2017 communication is key.  First, it brings the alleged conspiracy within the 5 year Sherman Act statute of limitation.  Equally important, Makan Delrahim and other DOJ officials have been warning for the last several years that naked no-poach agreements that continued past October 2016 would be considered as possible criminal violations of the antitrust laws.  In a speech in January 2018, Principal Deputy Assistant Attorney General Andrew Finch stated that “the Division expects to pursue criminal charges” for agreements that began after October 2016, as well as for agreements that began before but continued after that date.  This case makes good on that warning.

As the press release states, “An indictment merely alleges that crimes have been committed, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt.”  With that caveat, there are a couple of lessons to be learned from the indictment:

• COMPLIANCE! COMPLIANCE! COMPLIANCE!

            As noted, Mr. Delrahim and other Antitrust Division officials have been warning for years that no-poach agreements that continued past October 2016 would be considered as possible criminal cases. In October 2016 the Antitrust Division and Federal Trade Commission issued “Antitrust Guidance for Human Resource Professionals.”  The guidance includes this statement, “Violations of the antitrust laws can have severe consequences. Depending on the facts of the case, the DOJ could bring a criminal prosecution against individuals, the company, or both.”  Judging from the 2017 allegations in the SCA indictment, this message did not seem to reach the employees allegedly involved in this no-poach agreement.  While the indictment is against two corporate entities, individuals can be held accountable and further charges are possible.

When I was an Antitrust Division prosecutor I found it particularly unpleasant to consider indicting, or actually indicting, individuals who had not received any antitrust counseling from their employer.  [Note:  I do not know if the actors in this case had received antitrust training and ignored it.]  But, ignorance of the law is no defense to a Sherman Act indictment and prosecutors will do their job, even if corporate employers had not.  Besides an obligation to its employees, it is also in the corporation’s best interest to have a well-trained, compliant work force. The expense and disruption from a criminal antitrust investigation, not to mention the fines that can be imposed upon conviction, can be devastating.  That is just what awaits behind Doors #1 and 2.  Behind Door #3 is usually lengthy civil litigation on behalf of the victims of the collusion.

It doesn’t take a crystal ball to know that the important work begun under Makan Delrahim to prioritize investigation and deterrence of anticompetitive agreements in labor markets will continue under the new administration.  Especially in light of burden health care workers have endured with the COID-19 pandemic, it is also likely anticompetitive agreements in health care markets will have priority.  Robust and continuing compliance in this area is in everyone’s best interest.

• Any Agreement that Tampers….

            The agreement alleged in this case was not a complete prohibition on companies hiring each other’s employees.  The agreement was “that SCA and Company A would allocate senior-level employees by not soliciting each other’s senior level employees across the United States.”  If I understand the indictment correctly, an employee from one company could apply to the other company and be considered if the employee told his current employer of his job inquiry. United States v. Socony Vacuum, 310 U.S. 150 (1940) held, “Any combination which tampers with price structures is engaged in an unlawful activity. Even though the members of the price-fixing group were in no position to control the market, to the extent that they raised, lowered, or stabilized prices they would be directly interfering with the free play of market forces.”  The agreement alleged in the SCA indictment, if proved, certainly “directly interfer[ed] with the free play of market forces.”

• Corporate Leniency 

            Many criminal antitrust investigations begin when a corporation, during an internal investigation, discovers the firm may have been engaged in illegal conduct. The SCA indictment may be the product of a corporation seeking leniency from the Division in return for cooperation.  The Antitrust Division has a policy of according leniency to corporations reporting their illegal antitrust activity at an early stage, if they meet certain conditions. “Leniency” means not charging such a firm criminally for the activity being reported.  Current and former employees also may get protection from criminal prosecution if they meet certain conditions.  The Antitrust Division has a “Leniency Program” web page that contains the Corporate and Individual Leniency Policy as well as a FAQ section. (here).

A key feature of the Corporate Leniency Policy is that it is available only to the first corporation to qualify.  Acting quickly can be the difference  between being thee “first in” and qualifying for leniency or missing out and facing criminal charges.

Thanks for reading.

PS.    There is more information and links relating to no-poach and wage fixing cases and policies in an earlier Cartel Capers blog post: A Look Back at the Road to the Antitrust Division’s First Criminal Wage-Fixing Case. 

Bob Connolly  bob@reconnollylaw.com.

As far as  criminal price fixing cases brought by the Antitrust Division, the indictment in US. v.. Neeraj Jindal, Case 4:20-cr-00358 (E.D. Texas, filed 12/9/20)(press release and indictment link here) would seem remarkable only in how insignificant the alleged conspiracy time period and volume of commerce are.  Jindal was the owner of  a therapist staffing company in the Dallas-Fort Worth metropolitan area.  He is charged with conspiring  “from in  or around March 2017 to in  or around August 2017” by “agreeing to fix prices by lowering the pay rates” to physical therapists and physical therapists  assistants.  The indictment  does not  allege a volume of commerce.  The  indictment charges a second count of obstruction of justice alleging, “Specifically, the Defendant made false and misleading statements to the FTC and withheld and concealed information from the FTC.”  The obstruction involved lying to the FTC, which began the wage-fixing investigation.  The Department of Justice became involved since the FTC cannot bring criminal cases.

This is a small case with big implications.  First, and this cannot be repeated enough, lying to federal agents during the investigation is a sure way to make a criminal prosecution attractive.  Destroying documents, allowing yourself to be questioned without an attorney present (or lying about a material fact even if one is present) are all very bad ideas.  This is an old message that is worth repeating.  The real significance of the case, however, is that it is a partial answer to the question “Whatever happened to the criminal antitrust no-poach/wage fixing cases the Antitrust Division was warning about for the last several years?” This wage-fixing case, while very small in scope and commerce, speaks loudly of the Antitrust Division’s prosecutorial intent in this area.  A little bit of the history of the Antitrust Division’s prosecutorial intent with respect to no-poach cases follows.

In 2010, Adobe, Apple Google, Intuit and Pixar entered into settlement agreements with the Department of Justice. The Antitrust Division reached settlements with six high technology companies – Adobe Systems Inc., Apple Inc., Google Inc., Intel Corp., Intuit Inc. and Pixar – that prevented them from entering into no solicitation agreements for employees. According to the civil complaint, the six companies entered into agreements that restrained competition between them for highly skilled employees. The agreements between Apple and Google, Apple and Adobe, Apple and Pixar and Google and Intel prevented the companies from directly soliciting each other’s employees. An agreement between Google and Intuit prevented Google from directly soliciting Intuit employees. The investigation uncovered evidence such as an email exchange wherein Steve Jobs asked Eric Schmidt to stop Google from trying to hire one of Apple’s engineers: “I would be very pleased if your recruiting department would stop doing this,” Jobs wrote to Schmidt on March 7, 2007.  Schmidt then sent the request to his HR department, saying “I believe we have a policy of no recruiting from Apple and this is a direct inbound request. Can you get this stopped and let me know why this is happening? I will need to send a response back to Apple quickly so please let me know as soon as you can.” A civil class action case followed the government’s case (as they usually do) which the companies later settled for $415 million.  CNET, September 3, 2015,  Lance Whitney,  Apple, Google, others settle antipoaching lawsuit for $415 million. 

Fast forward to October 2016, when the United States’ Department of Justice’s Antitrust Division and Federal Trade Commission issued guidance regarding the application of U.S. antitrust laws to no‑poaching and wage-fixing agreements between employers. This joint guidance indicated that “Going forward, the Justice Department intends to criminally investigate naked no-poaching or wage-fixing agreements that are unrelated or unnecessary to a larger legitimate collaboration between the employers.” DOJ/FTC Press Release, October 20, 2016 Justice Department and Federal Trade Commission Release Guidelines for Human Resource Professionals on How Antitrust Law Applies to Employee Hiring and Compensation.   In a speech in January 2018, Principal Deputy Assistant Attorney General Andrew Finch stated that “the Division expects to pursue criminal charges” for agreements that began after October 2016, as well as for agreements that began before but continued after that date. On April 3, 2018, the Antitrust Division filed a civil antitrust lawsuit against Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. (“Wabtec”), and with it simultaneously filed a civil settlement. The complaint alleged that these companies and a third company, Faiveley, reached naked no-poach agreements beginning as early as 2009 and continuing until at least 2015. Because the conduct ended before the Division’s guidance of October 2016 regarding possible criminal prosecution, the case was pursued civilly.

The Antitrust Division, however, continued to warn about potential criminal actions in this area.  The Antitrust Division Spring Update 2018 stated, “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.”  At a January 19, 2018 Antitrust Research Foundation Conference, Assistant Attorney General Makan Delrahim, announced that the DOJ would bring its first criminal cases involving alleged “no poaching” agreements in violation of the Sherman Act in the coming months. In particular, AAG Delrahim warned that if such activity “has not been stopped and continued from the time when the DOJ’s [new antipoaching] policy was made” in October 2016, “we’ll treat that [conduct] as criminal.” He added, “I’ve been shocked about how many of these [agreements] there are, but they’re real.”

While the Antitrust Division has not filed any criminal no-poach cases, it did intervene in a private no-poach case in November 2019.  A November 8, 2019 DOJ Press Release recounted that a on Sept. 25, 2019, a federal district court in North Carolina entered a unique final judgment in a private no-poach class action that approved the parties’ settlement agreement and allowed the United States to enforce the injunctive relief and compliance provisions of the settlement agreement. The settlement followed the Justice Department’s successful intervention in the case, which challenged alleged agreements between Duke University and the University of North Carolina not to compete for each other’s medical faculty.  Seaman v. Duke University and Duke University Health System, Case No. 1:15-cv-000462-CCE-JLW (M.D.N.C.).

In the Division Update Spring 2019, the Division noted that it had filed statements of interest in civil cases.  Many private litigants brought no-poach cases after the Division had brought the issue to light. In its statement of interest, the Division argued that a franchisor and franchisee are not automatically deemed to be a single entity and can be separate entities capable of conspiring within the meaning of Section 1. The United States also argued that naked, horizontal no-poach agreements between rival employers within a franchise system are subject to the per se rule. A restriction in a franchise agreement that forbids franchisees from poaching each other’s employees, however, is subject to the rule of reason in the absence of agreement among the franchisees because it is a vertical restraint. If there is alleged agreement among the franchisees, the restraint is subject to the rule of reason so long as it is ancillary; that is, separate from, and reasonably necessary to, the legitimate franchise collaboration. Moreover, the Division argued that the “quick-look” form of rule of reason analysis is inapplicable because the court should weigh the anticompetitive effects against the procompetitive benefits of franchise no-poach agreements that qualify as either vertical or ancillary restraints.

Many State AG’s also began investigating no-poach agreements, particularly in the fast-food industry.  In a March 12, 2019 press release, California Attorney General Xavier Becerra announced that the State of California, as part of a multistate effort, had entered into agreements with four major fast food companies that prohibit those franchise corporations from continuing to employ “no-poach” policies. “Many of these anticompetitive no-poach provisions required franchise operators to contractually agree to not hire or solicit the employees of another franchise operator. As a consequence, employees, many of whom are low-wage workers, may have been unable to seek better pay and benefits by going to work for a competing franchise. Workers are often unaware of these provisions in the contracts. As a result of the settlements, Arby’s, Dunkin’, Five Guys, and Little Caesars will no longer include no-poach provisions in any of their franchise agreements in the United States.”

While there still had not been any criminal antitrust no-poach indictments, as late as October 29, 2019, an Antitrust Division official testified before Congress that, “The Division has a number of active criminal investigations into naked no-poach and wage-fixing agreements.  While we cannot comment on the status or the timing of these investigations, I want to reaffirm that criminal prosecution of naked no-poach and wage-fixing agreements remains a high priority for the Antitrust Division.”

As of this date, December 2020, the Antitrust Division still has not brought a criminal prosecution of a no-poach agreement.  There has been no public announcement as to why the promised cases have not materialized. It’s possible that there are no-poach agreements still being considered for possible criminal prosecution. It is my guess, and it is only a guess, that upon final examination, and with the threat of a vigorous defense challenge in court, the Division decided not to risk any assault on the per se rule by bringing a no-poach case that a defense team might successfully characterize as having some pro-competitive benefits.  A naked wage-fixing indictment, such as the Jindal indictment the Division just announced, pretty clearly falls in to the per se box.  There is no arguable pro-competitive benefits from an agreement simply to fix/reduce employees’ wages.  No-poach agreements, however, may contain some arguably pro-competitive benefits such as inducing a franchise owner to train employees, secure in the knowledge that they won’t be “poached” away with the employer losing the benefit of the training.  The Antitrust Division will no doubt be very careful to indict only clearly per se cases. The per rule is under enough attack in traditional price fixing/bid rigging cases without pressing the issue with arguably ambiguous or novel cases.   See, Robert E. Connolly, Competition, Spring 2020, Volume 30, No 1, at 177, In the Clash Between the Venerable Per Se Rule and the Constitution, The Constitution Shall Prevail (In Time)   

            SOME TAKEAWAYS

1. If you want to make yourself a test case establishing a prosecutorial principle,  do what this defendant allegedly did.  Leave a text/email trail memorializing the agreement to lower employees’ wages.  Then, while representing yourself during the investigation, make false statements to the FTC denying the agreement.  If the defendant had had an attorney, cooperated with the FTC and admitted his conduct, it is quite possible this matter may have been resolved as a civil case.

2.   This is a very small case in terms of commerce for the Antitrust Division.  But the indictment has put the business community on notice that naked wage-fixing agreement may be  prosecuted as criminal      matters.  The Antitrust Division will commit resources, even in relatively small markets, to protect workers when the facts show a naked restraint.  This statement from the Antitrust Division’s Spring Update 2018 is undoubtedly still true today, “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.”

3. The COVID pandemic has further focused the government’s attention on protecting labor markets from unlawful restraints.  On April 13, 2020 the FTC and DOJ Issued a Joint Statement announcing that they are on the  alert for Collusion in the US Labor Markets.  According to a press release, challenges to anticompetitive conduct in labor markets by the DOJ and FTC agencies will include:

• Unlawful wage-fixing and “no-poach” agreements
• Anticompetitive non-compete agreements
• Unlawful exchange of competitively sensitive employee information
• Inviting other individuals and companies to collude
• Actions and conduct that harms competition

“The Division will use its enforcement authority to ensure that companies and individuals who distort the free market for labor are held to account,” said Assistant Attorney General Makan Delrahim of the DOJ’s Antitrust Division. The Agencies made it clear that “COVID-19 does not provide a reason to tolerate anticompetitive conduct that harms workers, including doctors, nurses, first responders, and those who work in grocery stores, pharmacies, and warehouses, among other essential service providers on the front lines of addressing the crisis.

No one should assume that because no criminal antitrust case has been brought based on a no-poach agreement that one will never be. And even if a criminal per se case is not brought, no-poach agreements may be challenged as civil antitrust violations.  And now, a wage-fixing case has been brought criminally.  The DOJ and FTC will be on the look-out for any anticompetitive agreements that victimize front line Covid-19 workers. A criminal case, where one is justified, would certainly be a strong deterrent because penalties for individuals for a criminal conviction include a jail sentence of up to 10 years and a criminal fine oof $100,000.  Corporations can be fined up to $100 million, and in certain situations, possibly even more.

If you are interested in an article recounting the history of no-poach agreement as antitrust violations, see, “No-Poach Agreements as Sherman Act Violations: How We Got Here and Where We’re Going, Jamie Chen, Competition: Fall 2018, Vo. 28, No.1.

Thanks for reading

Bob Connolly  bob@reconnollylaw.com.