ANALYSIS: Per Se, or Not Per Se — That is the No-Poach Question

The Department of Justice’s antitrust division has intervened as an interested party in a number of suits about “no poach” agreements, in which companies allegedly agreed not to recruit or hire each other’s employees. The DOJ wants to clarify, it says, which agreements among companies are always illegal restraints under Sherman Act §1 and which should get the legal benefit of the doubt under the “rule of reason” analysis, which balances pro-competitive and anticompetitive impacts of the agreement on a given market.

Per se violations, also called “naked restraints of trade,” are those that are so reliably anticompetitive that ...