I received this email about an important development in India’s cartel enforcement program from my friends at the law firm of Shardul Amarchand Mangaldas & Co.   I am posting it with permission.

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Dear Bob,

Yesterday, on 19 January 2017, the Competition Commission of India (CCI) published the first order involving leniency in a cartel case, heralding a much awaited and welcome chapter in its cartel enforcement regime.

In this order, a 75% reduction in the penalty was granted to both the leniency applicant (an enterprise) and the responsible individual involved in the cartel, bearing in mind the stage at which the leniency application was made and the evidence already in the CCI’s possession at that time.

Please find attached a summary and our analysis of this important order.  Competition Matters – First Indian Leniency Decision

Best regards,

Competition Law Team
Shardul Amarchand Mangaldas & Co.

pallavi shroff | john handoll | naval chopra | shweta shroff chopra | harman singh sandhu | manika brar | aparna mehra
Shardul Amarchand Mangaldas & Co
Advocates & Solicitors
Amarchand Towers, 216 Okhla Industrial Estate, Phase III, New Delhi – 110 020, India

[email protected] | [email protected] | [email protected] | [email protected] | [email protected] | [email protected] | [email protected]

There is some news in the capacitor civil litigation concerning the commerce subject to potential damages under the Sherman Act and Foreign Trade Antitrust Improvement Act (FTAIA). With guilty pleas in the Antitrust Division’s ongoing criminal investigation, the main question in the civil litigation for many of the defendants has been “How much is this going to hurt?” As the case moves towards the plaintiffs’ attempt to get class certification, a big chunk of potential commerce has been knocked out—for now.

Back in October 2016, Judge Donato had made preliminary rulings on the applicability of the FTAIA to certain categories of capacitor commerce. See Cartel Capers, Judge Donato Issues FTAIA Order in Capacitors Civil Litigation, and Ben Hancock, The Recorder, In Price Fixing Cases, Two Judges Rule on Reach of US Antitrust Laws, October 3, 2016.  In his previous ruling, Judge Donato knocked out a “global pricing theory” for commerce based on purchasers by foreign entities who were invoiced and received their capacitors abroad, but the Court left this type of commerce open for further briefing to allow the plaintiffs to convince him there was a basis to include this commerce in possible damages. Now, the plaintiffs, by stipulation with the defendants, have dropped their efforts to include this commerce.  Judge Donato signed the stipulation making his previous ruling a final order allowing the plaintiffs the right to appeal.

Below is a section of the stipulation entered into by the parties and signed by Judge Donato:

WHEREAS, the Phase I Order resolved certain disputes between Defendants and DPPs with respect to three categories of transactions in particular: (1) “Capacitors Billed To Entities In The U.S.”; (2) “Capacitors Billed To Foreign Entities But Shipped To The U.S.”; and (3) “Capacitors Billed And Shipped To A Foreign Entity.” See Phase I Order at 5-11.

WHEREAS, with respect to the category of “Capacitors Billed And Shipped To A Foreign Entity,” the Court held that “the Sherman Act claims of foreign purchasers who were invoiced and received their capacitors abroad are not barred as a matter of law, but they may not allege a claim on the basis of a global pricing theory.” See Phase I Order at 8-11. The Court further ordered a second phase of summary judgment briefing with respect to this category of transactions, after which the Court would “apply these legal determinations to the record and end in a final order on defendants’ requests for summary judgment under the FTAIA.” Id. at 3.

WHEREAS, the Phase I Order resolved certain disputes between Defendants and DPPs with respect to three categories of transactions in particular: (1) “Capacitors Billed To Entities In The U.S.”; (2) “Capacitors Billed To Foreign Entities But Shipped To The U.S.”; and (3) “Capacitors Billed And Shipped To A Foreign Entity.” See Phase I Order at 5-11.

WHEREAS, with respect to the category of “Capacitors Billed And Shipped To A Foreign Entity,” the Court held that “the Sherman Act claims of foreign purchasers who were invoiced and received their capacitors abroad are not barred as a matter of law, but they may not allege a claim on the basis of a global pricing theory.” See Phase I Order at 8-11. The Court further ordered a second phase of summary judgment briefing with respect to this category of transactions, after which the Court would “apply these legal determinations to the record and end in a final order on defendants’ requests for summary judgment under the FTAIA.” Id. at 3.

IT IS HEREBY STIPULATED AND AGREED by and between counsel for the DPPs and the undersigned Defendants, subject to the concurrence of the Court, that:

1. Upon the Court’s endorsement of this Stipulation and [Proposed] Order, theCourt’s Phase I Order shall constitute a final order with respect to Defendants’ Motion for Summary Judgment with respect to DPPs’ claims of foreign purchasers who were invoiced and received their capacitors outside the United States. Such an order does not affect or limit DPPs’ rights or timing to seek appellate review or Defendants’ rights to oppose any such appellate proceeding.

2. The Phase II FTAIA briefing schedule for the DPP action, and related hearing date scheduled for March 23, 2017, are hereby vacated with respect to the undersigned Defendants.  See Amended Scheduling Order, ECF No. 1405.

The undersigned parties jointly and respectfully request that the Court enter this stipulation as an order.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated: January 11, 2017

Honorable James Donato

The full document is available at In re Capacitors Antitrust Litigation, Case No. 14-cv-03264-JD.

There has been much speculation about what a Trump presidency will mean for antitrust enforcement at the Antitrust Division and Federal Trade Commission. Much of the wonder is about whether Trump will take an activist approach he suggested during the campaign, for example, when he said he thought Amazon had “a huge antitrust problem” and he voiced opposition to AT&T’s effort to acquire effort to acquire Time Warner.   Or does the placement of Joshua Wright on the transition team signal a return to a more traditional Republican “hands off” role where the pendulum swings back to a belief that the market will correct concentration issues and the concern is more to prevent wrong-headed government intervention.

I have been thinking about whether there should be any adjustment in criminal enforcement. Criminal enforcement has generally been pretty steady over various administrations. They all have shared the belief that cartels are the “supreme evil of antitrust” and that jail sentences for culpable executives is the best deterrent. Two noteworthy developments in criminal enforcement, however, come to mind. Shortly after World War II, the legendary Thurman Arnold, head of the Antitrust Division, opened field offices to combat bid rigging in the construction trades. And, in 2013, then Assistant Attorney General Christine Varney closed four of the Division’s seven regional offices. The closed offices were Atlanta, Cleveland, Dallas and Philadelphia. New York, Chicago and San Francisco remained open. I think President-elect Trump should reverse that contraction and reopen field offices.

President-elect Trump has promised a massive public procurement effort to help rebuild America’s infrastructure. Two recent international cartel enforcement items brought to mind the wisdom of ramping up regional and local enforcement efforts to deter, investigate and prosecute bid rigging on these public projects. A couple of items caught my attention as I have been thinking of this subject.

 From Canada

On December 5, 2016, the Canadian press reported that:

The Competition Bureau of Canada says its efforts to identify and prevent bid rigging in construction contracts this year has already turned up potential criminal activity — just as new federal infrastructure money begins to flow.

Pierre-Yves Guay, the bureau’s assistant deputy commissioner, said some of the educational outreach the bureau has delivered since April has resulted in illegal activities being uncovered and inquiries being launched. (here)

From Brazil

USA Today reports on December 6, 2016

So far, there are indications that at least five bids related to World Cup stadiums were the subject of the cartel,” the anti-trust body CADE said in a statement…. Reports have been widespread about corruption linked to World Cup stadiums. Investigations are also on-going involving construction projects tied to this year’s Olympics in Rio de Janeiro.  (here).

I am going to write more about why I think it would be a good investment to open additional field offices. But first, a disclaimer. I was the Chief of the dearly departed Philadelphia Field Office and went down with the ship when the office was closed in 2013. I am not lobbying for my old job back, and in fact if I were adding field offices I would not at this time put one in Philadelphia. The real value of the Philadelphia office was the talent and experience of the staff there—and that, like Humpty Dumpty, can’t be put back to together again.   I do, however, think that the regional offices in Atlanta and Dallas should be reopened.

International cartels are a worthy focus of Antitrust Division resources but it’s worth remembering that the field offices played a huge role in the development of the Division’s international cartel program. The modern era of international cartel enforcement was the Archer Daniels Midland case brought by the Chicago Field Office. The record $500 million fine and other convictions in the vitamins investigation led by the Dallas Field Office followed that.  The Philadelphia Field Office had some “firsts” with the graphite electrode investigation and the extradition, trial and conviction of British executive Ian Norris. San Francisco has had accomplishments too numerous to mention as do the criminal sections headquartered in DC with blockbusters like air cargo and auto parts. The point is that international cartels can be investigated and prosecuted wherever there are talented and dedicated antitrust enforcers. But as for regional conspiracies, I don’t believe the opposite is true. The strength of the field offices had always been their ability to network with investigative agencies from the FBI, the gamut of federal IG’s offices, state and local prosecutors and public procurement officials. These local contacts were crucial to educating agents and purchasers about antitrust violations, and giving them the information (and motivation) needed to spot and report possible collusion.

Regional conspiracies do not produce the extraordinary fines that international cartels can. But, there is merit to investigating and prosecuting regional cartels. First, the harm from bid rigging on public procurement is very focused. It isn’t a case of millions of consumers losing pennies on a purchase, but a federal, state or local entity losing a big chunk of its scarce tax dollars. Bid rigging schemes are often more effective at raising prices. They can also be very long-lasting as the structure of public procurement can make these awards both more susceptible to bid rigging and more difficult for market forces to disrupt in the short-term. For these reasons, the Sentencing Guidelines give a modest one-point bump for bid rigging, recognizing it generally has a more serious impact on the victim.

Finally, successful prosecution of a bid-rigging scheme can bring meaningful restitution to the public victim in the form of treble damages. It restores public confidence that tax dollars are being spent wisely. And the cost of publicly procured goods often sees a dramatic drop, sometimes even simply by the start of an investigation. I also think the prosecution and imprisonment of domestic price fixers and bid-riggers can generate publicity and pack more of a “deterrent punch” than prosecution of foreign executives, many whom remain fugitives.

These are just some quick thoughts on why I think a couple of field offices in strategically placed geographic areas would be a boon for antitrust enforcement. I’ll be thinking and writing more about this subject as I get some free time. But, what do you think? If you have any thoughts on the matter, I’d be happy to hear them.

Thanks for reading.  More to come.

I received the above titled email from the ABA Journal and I am honored to be able to post the banner below to Cartel Capers home page (as soon as I can figure out how to do that.)

I am very honored to join this distinguished group of legal blogs.  This is how the ABA Journal Blawg 100 described Cartel Capers:

Trust this antitrust blog: Robert Connolly, a Justice Department veteran now in private practice, reads cartel prosecution documents and discusses the cases from the Antitrust Division’s point of view—although not necessarily without criticism for the approach the DOJ takes in a given case. He also compares and contrasts different countries’ approaches to competition law.

I have been so fortunate to have had a career in antitrust law, mostly with the Department of Justice and now in private practice.  When I first started the blog, I was surprised that anyone read it. It was mostly a way for me to express the appreciation I have for antitrust laws and the important role that sound public policy plays in promoting free, open and competitive markets.  But along the way, I have been quoted by Judge Richard Posner in Motorola Mobility v. AU Optronics, 775 F.3d 816, 826-27 (7th Cir. 2015).  I have also developed friendships with attorneys from around the world who occasionally contribute their insights.  The blog has been a very enjoyable way to share the wonderful training, insights and broad experiences I had while working in the Antitrust Division USDOJ.

For a complete list of the ABA Journal Top 100 Blawgs and other information, please visit here.

Thanks for reading.  (I still get a kick out of it when I meet someone and they tell me they read the blog!).

Below is a post by Brad Geyer, my partner at GeyerGorey LLP.  As you can tell from the title of the post, it is not the typical Cartel Capers fare, but you might find it interesting.

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By Bradford L. Geyer [1]

When I concluded by summer of 2015 that our next President would be Donald Trump, my closest friends and associates were skeptical. Having grown up in the New York media market and reading the “Art of the Deal” after college, I studied Donald Trump because he was interesting. You are free to see it differently, but I see in President-Elect Trump as a strategic and tactical thinker who comes off as being spontaneous and off the cuff, but is actually in the third decade of his strategic plan. To read his books and to watch old videos shows a consistency in public policy views that is startling.

Few took President-Elect Trump seriously over the years in his statements about Antitrust, but like the protagonists in a movie, the best ones like to tell the antagonists that it’s coming.   Any mystery about President-Elect Trump’s Antitrust enforcement priorities should have been eliminated when in his “Gettysburg address” outlining his plans for his first 100 days, he blasted the media and turned his ire toward the Comcast / NBC Universal merger stating that the merged company is “trying to poison the mind of the American voter,” and said that the deal should never have been approved in the first place, and that it’s bad for democracy (here). He took his complaints further, promising action to prevent AT&T from buying Time Warner, the parent company of CNN, which he argued would concentrate too much power in one company (here). “We’ll look at breaking that deal up and other deals like it,” he vowed. “They’re trying to poison the mind of the American voter.”

President-Elect Trump has already been equally clear in expressing his thoughts about Amazon [2]:

Amazon has “a huge antitrust problem,” and (Jeff) Bezos (owner of the Washington Post and founder of Amazon.com) “thinks I would go after him for antitrust.”

– from the Twitter account of @realDonaldTrump (May 14, 2016)(here)

President-Elect Trump may have the most sophisticated view of Antitrust Law of any U.S. President in history. That experience was recently referenced by Emre N. Ilter in the National Law Review:

Mr. Trump was involved in three significant antitrust proceedings in the late 1980s and early 1990s. First, in 1988, Mr. Trump paid a $750,000 civil penalty to settle charges brought by the US Department of Justice (DOJ) and Federal Trade Commission (FTC) that he had violated the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) by acquiring stock in two companies without making timely HSR filings. Around the same time, Mr. Trump, as one of the owners of the New Jersey Generals US Football League team, was involved in a private antitrust suit against the National Football League (NFL)—a case that resulted in a jury verdict that the NFL had willfully acquired or maintained monopoly power in a market consisting of major league professional football in the United States, in violation of Section 2 of the Sherman Act. Damages of $1, trebled to $3, were awarded. US Football League v. Nat’l Football League, 842 F.2d 1335 (2d Cir. 1988). Finally, Mr. Trump, in connection with his Atlantic City casinos, was sued by Boardwalk Properties, Inc. on numerous grounds including allegations that he had attempted to monopolize casino gambling and had conspired to suppress competition. After a lengthy legal battle, Mr. Trump prevailed. (here).

Combine experience, competition sophistication and seething intensity [3] and recognize that in the early 1980’s there were 50 media companies in the United States. Now that number is 6[4]. I suspect he believes there is a significant conscious parallelism among these six companies and there seems to be tight coordination and collaboration –a common gestalt — among these organizations on a host of issues. Call it a “thought cartel”. I would suggest that recent Wikileaks disclosures are likely to have reinforced this view among him and his team of advisors who may suspect that media companies are inducing lax regulation through maximizing the benefits of close relationships of its media figures with the political apparatus.[5]  Further, is President-Elect Trump viewing AT&T, Time Warner, Amazon, Comcast and even Google [6] individually as “media and information trusts”, as he finalizes his enforcement initiatives? My hunch is that he is and that each of these companies is at risk of enhanced enforcement attention.

It is clear that President Elect-Trump understands the power of the bully pulpit and he knows that if he can get AT&T and Time Warner to abort merger discussions before “the sheriff even rides into town” that means: 1) less work for him; 2) emboldened career civil service enforcers who were gearing up to make the case for blocking it; and 3) an enhanced perception of the Antitrust Division’s power. This, before he takes the oath of office in January, means enhanced leverage on day one.

I believe that it is possible he will pick a high visibility company, possibly on the crest of the wave of an aborted AT&T deal, to break up. So what potential “trust” will it be? Amazon has attracted criticism and controversy for years. Many of the criticisms are tied to allegations of anti-competitive or monopolistic behavior.  Does President-Elect Trump agree with Paul Krugman who recently penned, “Amazon.com, the giant online retailer, has too much power, and it uses that power in ways that hurt America.”[7]  Could the Department of Justice under the leadership of an Attorney General appointed by President-Elect Trump quite credibly take the view that Amazon is the Standard Oil Company or the AT&T or the Microsoft of its day [8] and bring an action to break it up?

I am certain that President-Elect Trump will announce that enforcement of the nation’s Antitrust Laws needs to be reinvigorated and that allegations of predatory pricing and attempts to monopolize certain sectors of the economy will not be tolerated. Some might expect that a Republican administration would line up alongside lax Section 2 enforcement. It is clear, however, that whatever else might be expected in a Trump administration, based on his statements throughout the campaign, consistency with Republican orthodoxy is not that thing and affected companies would be well served to increase their outside counsel budget.

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1. Mr. Geyer is a partner in the Washington and Philadelphia-based law firm of GeyerGorey LLP. Prior to entering private practice he was a prosecutor in the Antitrust Division of the Department of Justice for 21 years. From 2007 through 2012 he served as the Antitrust Division’s Special Counsel to the Criminal Division involving “war zone” cases and investigations involving procurement fraud and grand fraud.

2.  President-Elect Trump on Hannity May 12, 2016 at 15:59 through 17:20. “[Jeff Bezos is] using the Washington Post . . . he’s using that for political purposes to save Amazon in terms of taxes and in terms of antitrust.

3.  Any member of the Antitrust defense bar who would like to get a flavor of what I suspect will be reinvigorated Antitrust Enforcement under a Trump administration would be well served to watch this video which shows Seth Rogan and President Obama roasting President Elect Trump in 2011. If you are like me, when you watch this video you see a ferocious Kodiak bear in a cage that is being poked with sticks. The Bear is not reacting, but you can tell he is going to bust out of the cage and tear the pokers to shreds … after he constructs an ingenious plan. There is something about his reaction that makes you feel uncomfortable from the first Rogan joke. You want to plead with the men with the sticks to “please just stop.”   You actually look in your hand to make sure you aren’t holding a stick and try to drop it anyway. That is called power and intensity and control. He has it and he knows how to use it.

4.  See, The Media Monopoly, 6th Edition, March 24, 2000, by Ben H. Bagdikian.

5.  For example, in an April 15, 2014 email released by WikiLeaks, Eric Schmidt, CEO of Google, proposed that a $1.5 billion Clinton Campaign vehicle be formed that, among other things, to convert each voter to a single record that aggregates all that is known about them. Are enforcers entitled to wonder if voters across the country want to be converted into a record and whether this market share in this endeavor is aided by power in Google’s core businesses? Would Google’s relationship with the Clinton campaign team regenerate an interest in their potential antitrust issues as Europe has? (When enforcers read this email does it bring the movie, “the Clockwork Orange” to mind like it did for me?).

6.  See, http://www.nytimes.com/2016/10/31/technology/google-europe-antitrust.html

7.   See, http://www.nytimes.com/2014/10/20/opinion/paul-krugman-amazons-monopsony-is-not-ok.html?_r=0

8.   Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911); United States v. American Tel. and Tel. Co. , 552 F.Supp. 131 (D.D.C. 1982); United States v. Microsoft Corp. , 56 F.3d 1448 (D.C.Cir . 1995).

 

[My apologies for an earlier post on this subject where I hit “Publish” by accident. Hopefully, readers could tell the difference between that post and my usual offerings. Below is the revised final version.].

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The four largest U.S. airlines were sued in class action civil litigation in 2015 for price fixing after several airline executives made public comments about the need for “capacity restraint” and “discipline”in the industry. After making these comments at a trade association event and other forums, over 100 different price fixing suits were filed.  They were consolidated before US District Court Judge Colleen Kollar-Kotelly for the District of Columbia. In the consolidated suits, plaintiffs allege that the airlines colluded to limit capacity on their respective airlines in a conspiracy to fix, raise, maintain, and/or stabilize prices for air passenger transportation services within the United States.  The crux of plaintiffs’ claim is that in 2009, after the economy improved and jet fuel prices declined, defendants made a conscious, joint decision not to return to the previous industry practice of adding airline capacity and decreasing fares. Judge Kollar-Kotelly denied the defendants’ motion to dismiss the complaint for failure to sufficiently allege evidence of an agreement. The full opinion can be found here. The Judge noted, among other things, that:

                        [T]hese statements upon which Plaintiffs rely demonstrate two points that support the plausibility of their claim and, more specifically, the inference that Defendants’ conduct was the result of an agreement. First, Defendants made public statements about their own commitment to capacity discipline as well as the importance of maintaining the capacity discipline within the industry. Defendants’ discussion of the need for capacity discipline within the industry as a whole is notable because it involves more than a mere announcement of Defendant’s own planned course of conduct. (citation omitted).  Second, Defendants’ statements concerning the focus on exercising capacity discipline commenced in 2009 and were a deviation from past business practices.

I first wrote about the airline cases in “They Said What? Some Compliance Thoughts on the Airline Collusion Investigation, Cartel Capers, July 13, 2015.  The post noted that this case would mark an expensive “teachable moment” for the airline industry and a competition compliance talking point for the rest of the world.  Standing alone the public comments were ill-advised, but here the airline industry already had several factors making it conducive to possible collusion (and the subject of a price fixing class action): there had been a great deal of industry consolidation resulting in an oligopoly, the airlines had a prior history of increasing capacity when the economy rebounded but did not do so here, and prices were increasing at a time when it was widely known fuel prices were declining. In any environment “discipline” and “restraint” are antitrust buzzwords that can connote possible collusion. While a company may announce its unilateral intention to exercise discipline or capacity restraint, voicing the need for industry wide discipline or capacity restraint could be seen as an invitation to other airlines; an invitation that plaintiffs allege was accepted. (And it should be noted that in some cases, even inviting other industry participants to take joint pricing action could be an “invitation to collude.” See Cartel Capers, Invitations to Collude Invite Big Trouble, March 3, 2015.

American Airlines spokesman Matt Miller called the plaintiff’s claims “plainly deficient” and said the carrier is confident they will be found meritless.  That may be so, or it may not. But, the litigation has already proved very expensive for the airlines. And, after surviving a Motion to Dismiss, the case will now head into discovery. In discovery, the plaintiffs may uncover direct evidence of a conspiracy, or further circumstantial evidence. Or the evidence already in hand may cause some or all defendants to settle to avoid the cost of further litigation or the possibility of treble damages in the case were to go to trial. Or, the plaintiffs’ case may be tossed at the summary judgment stage or rejected by a jury. But, one thing is for certain, the best type of restraint or discipline is often of one’s tongue (or text/email/etc.).

Thanks for reading.

PS.  The Antitrust Division has also opened a civil investigation but there has been no public developments in that investigation.

In a press release issued on October 20, 2016, the Antitrust Division and the FTC issued antitrust guidance for human resource (HR) professionals and others who are involved in hiring and compensation decisions.   While the guidance is helpful, the big news in the press release is:

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. (emphasis added).  These types of agreements eliminate competition in the same irredeemable way as agreements to fix the prices of goods or allocate customers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct. Agreements that do not constitute criminal violations may still lead to civil liability under statutes enforced by both agencies.

The press release announced the agencies’ joint guidance and includes a Q&A section that explains how antitrust law applies to various scenarios that HR professionals might encounter in their daily work lives.  The press release also contained links to the Antitrust Division’s Citizen Complaint Center and the FTC’s Report an Antitrust Violation page.

I am happy to see the Division give a warning that future naked restraints on employee hiring and/or wage agreements will be criminally investigated/prosecuted.   As noted in the guidance, “[I]n the past few years, the DOJ brought three civil enforcement actions against technology companies (eBay and Intuit, Lucasfilm and Pixar, and Adobe, Apple, Google, Intel, Intuit, and Pixar) that entered into “no poach” agreements with competitors.”  I thought these cases could have been brought criminally.  It really isn’t that complicated.  Buyer cartels are illegal whether an enterprise is buying computers, software or the employees who create/operate them.  Labor is an input and wage fixing agreements are illegal.  Of course, as in purchasing other inputs, there may be legitimate pro-competitive joint ventures efforts with an ancillary agreement on labor.  But, the cases the DOJ was bringing, were by the express terms of the Complaints, per se violations.

Aggressive criminal enforcement of naked wage/hiring agreements is highly warranted.  There are some cartels, the auto part cartels for example, that can cumulatively cause a lot of economic damage, but the collusive price increase may be dispersed over so many consumers that the collusion does not have a material effect on any one purchaser.  But, a “no poach” or wage setting agreement, has a direct and targeted effect on specific individuals.  The damage inflicted can be significant, not just monetarily, but on an individual’s ability to chart her own career path.

[If I seem a little bitter about employee related agreements, it is because I am sure I should have been playing in the Major Leagues if not for an agreement to boycott me.  In fairness, others have noted that it was likely because I peaked in Little League and after that I stunk].

Not to nitpick, because the joint guidance from the agencies is very helpful and the shot across the bow about possible criminal consequences, is refreshing.  But, the guidance is titled “Guidance for Human Resources Professionals.”  To me, this makes it sound like the HR folks were the problem.  As best as I recall, the knuckleheads who were engaged in forming the no-poach and wage fixing agreements were the most senior people at some of America’s most prominent technology company; not a cabal of HR managers.  It reminds me of when I was in grade school and me and my friends engaged in some prank, and the whole school would be called into assembly for a refresher from the Monsignor on just how hot it was in hell.  Still, the guidance to HR personnel may give them the thought to speak up internally or even file a complaint with the government if they believe/suspect they are being asked to carry out an illegal hiring agreement.

Thanks for reading.