The DOJ’s “No-Poach” Agreements: Navigating Implications to the Year Ahead and Beyond
Regulatory uptakes on anti-competitive restrictions in labor markets is expected to ramp up with the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) in the lead. Recently, the DOJ filed Statement of Interest on several pending cases to provide courts with significant guidance on the analysis of “no-poach” agreements and clarified that alleged cases of “no-poach” agreements do not automatically warrant per se review.
With several regulatory developments, heightened enforcement stance, and notable case decisions, the future of the antitrust landscape in the labor market remains uncertain. Businesses become more vulnerable to potential antitrust violations. Thus, it is essential for employers to thoroughly understand the risks of naked no-poach agreements and to ensure compliance to avoid criminal liabilities.
In this LIVE Webcast, antitrust lawyers Matthew Modell (Shearman & Sterling) and Kenina J. Lee (Axinn) will provide the audience with a comprehensive discussion of the critical issues surrounding “no-poach” agreements. Speakers will tackle significant implications in light of the current and emerging regulatory and enforcement trends. They will also provide compliance tips and strategies in this evolving area of law.
Key topics include:
- No-Poach Agreements: Enforcement Trends and Updates
- Emerging and Current Developments in Antitrust Law
- The ‘Rule of Reason’ Standard
- Notable Cases
- Best Compliance Practices
- What Lies Ahead?
Matthew Modell, Associate
Shearman & Sterling
- What is a no-poach agreement and why they are potentially illegal?
- FTC & DOJ HR guidance
- The ins- and outs- of no-poach agreements: Discussing when an agreement is per se illegal, generally permissible, and when further analysis is required.
Kenina J. Lee, Attorney
Axinn, Veltrop & Harkrider LLP
- DOJ Enforcement of No-Poach Agreements – covers DOJ’s lack of criminal enforcement of no-poach agreement despite 2016 guidance, as well as history of DOJ civil enforcement in the last decade.
- Private No-Poach Litigations – overview of recent private actions relating to no-poach agreements
- Special Case for No-Poach Provisions in Franchisor / Franchisee Relationship – covers enforcement actions taken by Washington State AG, circuit split on applicable standard of review, and single entity defense (including discussion of recent motion to dismiss opinion in Arrington v. Burger King Worldwide, Inc. (S.D. Fla. Mar. 24, 2020).
Who Should Attend:
- Antitrust Lawyers
- Labor and Employment Lawyers
- HR Executives and Administrators
- Corporate Counsel
Matt Modell is an associate in the Global Antitrust & Disputes Practice Group in Shearman & Sterling’s Washington, DC office. He focuses on antitrust and other complex litigation at the trial level in federal and state courts throughout the country. He has represented clients in various industries including defense, oil and gas, financial services, retail, and technology. Matt’s practice covers a broad range of litigation and internal investigation matters, including trade secret, fraud, unjust enrichment, and false claims matters. He has also represented corporate and individual clients in Department of Justice criminal and civil antitrust investigations, including handling plea negotiations in matters involving automobile parts.
Previously, Matt clerked for Judge Terrance W. Boyle in the Eastern District of North Carolina.
Matt Modell is an associate in the Global Antitrust & Disputes Practice Group in Shearman & Sterling’s Washington, DC office. …
Kenina Lee is an antitrust associate in Axinn’s Washington, DC office. Kenina litigates major class action and multi-district antitrust cases in federal courts throughout the United States. She also provides antitrust counseling and represents clients before the Federal Trade Commission (FTC) and Department of Justice (DOJ).
Prior to joining the firm, Kenina worked in both the Anticompetitive Practices and Mergers I division at the Federal Trade Commission as a legal extern and law clerk. At the FTC, she aided in merger investigations in the pharmaceutical and medical data-analytics industries.
Kenina Lee is an antitrust associate in Axinn’s Washington, DC office. Kenina litigates major class action and multi-district antitrust cases …
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Method of Presentation:
General knowledge of antitrust and employment laws
NY Category of CLE Credit:
Areas of Professional Practice
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About Shearman & Sterling
Shearman & Sterling has a long and distinguished history of supporting clients wherever they do business, from major financial centers to emerging and growth markets. Shearman & Sterling represents many of the world’s leading corporations and major financial institutions, as well as emerging growth companies, governments and state-owned enterprises, often working on ground-breaking, precedent-setting matters. With a deep understanding of clients’ businesses and the industries they operate in, Shearman & Sterling’s work is driven by their need for outstanding legal and commercial advice.
Shearman & Sterling has more than 850 lawyers around the world speaking more than 60 languages and practicing U.S., English, French, German, Italian, Hong Kong, OHADA and Saudi law.
About Axinn, Veltrop & Harkrider LLP
Axinn combines the skills, experience and dedication of the world's largest firms with the focus, responsiveness, efficiency and attention to client needs of the best boutiques. The firm was established in the late 1990s by lawyers from premier Wall Street firms with a common vision: provide the highest level of service and strategic acumen in antitrust, intellectual property and high-stakes litigation. Axinn’s lawyers have served as lead or co-lead counsel on nearly half a trillion dollars in transactions and, in the last 10 years alone, have handled more than 250 litigations.