Mike Warnecke, Diana Gillis Pen Article on DOJ Antitrust Suits in High-Tech Hiring Practices

The Antitrust Counselor, a publication of the ABA Section of Antitrust Law, has published “Antitrust Pitfalls in Hiring and Employment Practices,” an article written by Akin Gump litigation partner Mike Warnecke and antitrust associate Diana Gillis on a series of suits brought by the Antitrust Division of the Department of Justice regarding non-solicitation agreements among technology companies.

The article discusses the DOJ’s 2010 suits against Adobe, Apple, Google, Intel, Intuit and Pixar, which alleged that “agreements among the various companies regarding non-solicitation employment practices were per se illegal under Section 1 of the Sherman Act, which prohibits agreements that unreasonably restrain trade.”  These were followed by suits against Lucasfilm and eBay.

The authors go on to review types of conduct that are not likely to violate the antitrust laws, as outlined in the DOJ consent decrees: traditional employment and severance contracts, unilateral action regarding non-solicitation policies, agreements ancillary to legitimate ventures, and industry information exchanges and surveys.

They conclude that the DOJ lawsuits over non-solicitation agreement show that “antitrust risks lurk even in human resources departments” and that “[c]ompanies should consider adding a provision in their policy and training documents about compensation setting and hiring practices to underscore general antitrust principles: the need for independent action and to ensure that any restrictions placed on employees are reasonably related to a procompetitive purpose.”

To read the full article, please click here.