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Karen Hoffman Lent and Kenneth Schwartz Karen Hoffman Lent and Kenneth Schwartz

Antitrust treatment of wage-fixing agreements and information exchanges amongst employer competitors may soon re-enter the spotlight, coming out of the shadows of its cousin, the more extensively covered no-poach agreement. Despite promises from federal regulators in 2016 to crack down on impermissible agreements between employers and employers’ unlawful information exchanges, neither the Federal Trade Commission (FTC) nor the U.S. Department of Justice (DOJ) filed enforcement actions concerning such conduct in 2019. Indeed, the FTC has only brought one civil wage-fixing enforcement action since the agencies released their joint October 2016 guidance cautioning employers of antitrust issues within the labor market. As has been the case with no-poach agreements, state regulators and private litigants will likely pursue wage-fixing and information exchange actions on their own. But, before pundits start tracking these cases hoping that they will be the panacea for antitrust issues in the labor market, one lesson stands out from the no-poach saga: The antitrust inquiry is incredibly detailed-oriented and guided by nuances within antitrust doctrine that disfavor a one-size-fits-all, knee-jerk view of the matter.

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