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Lessons Learned: The DOJ's Crackdown on Hiring Practices
Over the past several months, the Department of Justice (DOJ) has begun investigating several leading technology companies for possible violations of the antitrust laws. One focus of the DOJ's multi-faceted investigation is whether certain companies have violated antitrust laws by agreeing among themselves not to recruit one another's employees. As has been reported by several news sources, Silicon Valley companies are alleged to have “gentleman's understandings” that actively recruiting a competitor's employees is off-limits. Critics of such agreements claim that they stifle competition for employees by restricting free movement in the job market, thereby suppressing employee wages. On the other hand, the limited use of narrowly drafted no-hire agreements may be reasonable restraints originating from the settlement of legitimate disputes over the misappropriation of intellectual property by poaching a competitor's employees.
While a company's independent decision not to recruit from a competitor isn't likely to constitute a violation of antitrust laws, when two or more companies actively agree not to pursue each others' employees, the antitrust laws need to be considered. The DOJ has argued that where employers covenant not to poach a competitor's employees, such agreements may enable a company to monopolize a market in violation of Section 2 of the Sherman Act or, by harming a competitor's ability to hire the most qualified candidates, create an unreasonable restraint of trade in violation of Section 1. Although the DOJ investigation is currently focused on the technology industry, where intellectual property disputes are frequently litigated, the DOJ may expand its scrutiny to other industries. Therefore, in-house counsel in all areas of the economy should take time to examine and revise employee hiring and retention policies to avoid running afoul of antitrust laws.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."