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Client Alert: The Department of Justice Fails to Persuade Jury in Most Recent No-Poach Prosecution Defeat

Publications

March 29, 2023

By: Debbie Berman, Andrew W. Vail, Jason M. Bradford, Joseph Torres

The DOJ Loses Jury Trial on No-Poach Conspiracy Charges.

In the wake of the Federal Trade Commission’s attack on non-competes,[1] the Department of Justice (DOJ) lost its most recent fight in its related battle against no-poach agreements. Last week, in United States v. Manahe et al., a federal jury in the United States District Court for the District of Maine acquitted four defendants of conspiring to fix their employees’ wages in restraint of trade.[2] Prosecutors accused owners of separate home health care agencies of agreeing to not hire each other’s employed caretakers and to not raise their wages above $16 per hour in a purported attempt to preserve profits.[3] After a two-week trial, the jury handed down “not guilty” verdicts on all counts.[4]

While Prosecutors Won on the Law, They Were Foiled by the Facts.

The prosecutors in Manahe secured a favorable interpretation of the antitrust laws, but still failed to demonstrate that the defendants actually entered into an agreement in violation of those laws. Specifically, they convinced the court to treat no-poach agreements as per se violations of the Sherman Act.[5] This meant that as long as the jury found the defendants entered into a no-poach agreement, they could convict without finding that the agreement had anticompetitive effects.[6] Accordingly, the jury was instructed to find the defendants guilty if they were convinced, beyond a reasonable doubt, that the defendants actually entered into an agreement to fix wages and to not hire each other’s employees.[7]

The prosecution presented evidence that the defendants communicated via WhatsApp, Zoom, and in-person meetings about their plans to fix wages and not hire each other’s employees, and even drafted an agreement to that end.[8] Yet, as defense counsel pointed out, the defendants had never actually signed that agreement, nor did they act in accordance with its terms, often paying higher wages than the agreements would have dictated.[9] These evidentiary shortcomings allowed the defendants to prevail.

Manahe Marks the Third Acquittal of Employment-Related Antitrust Defendants.

This is the DOJ’s third loss in its recent push to criminally prosecute employment-related antitrust violations. Last year, juries in United States v. DaVita Inc.—another no-poach case—and United States v. Jindal—a wage-fixing case—acquitted defendants accused of similar misconduct to that charged in Manahe.[10] In fact, the DOJ’s only recent win was achieved via plea deal.[11] The DOJ’s recent enforcement efforts have yet to successfully convict no-poach or wage-fixing defendants in front of a jury.

In all three acquittals thus far, prosecutors could not convince juries to convict under expansive interpretations of the antitrust laws. In Manahe and Jindal, these failures stemmed from weak prosecutorial evidence, with the unsigned agreement in Manahe and the government’s star witness reversing on the stand in Jindal.[12] In DaVita Inc., the DOJ’s loss may have had more to do with jury instructions that veered away from per se liability than the evidence.[13] The import of these impediments—and whether the government may win over juries with cases not bridled by them—remains to be seen.

The DOJ’s Campaign Against No-Poaches Continues this Month.

Despite its track record, the DOJ’s fight against no-poach and wage fixing agreements continues with another case beginning trial this week and expecting to go into May.[14] Regardless of the outcome, the DOJ is sure to persist in its aggressive attempt to secure criminal convictions for no-poach agreements. In parallel, the FTC will continue its crusade against non-competes, through both its proposed rule and its increasingly zealous enforcement strategy.[15] Even with the DOJ’s recent losses, it is important for employers to note that these cases have mostly failed on the facts and that no-poach agreements are still largely considered per se violations of federal antitrust laws. Companies should continue avoiding entering into agreements with competitors to fix wages or to not hire one another’s employees.

[1] The FTC Proposes Ban on Non-Competes (Jan. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-the-ftc-proposes-ban-on-non-competes; FTC Director’s Comments Continue the Concern and Confusion about Proposed Non-Compete Ban (Jan. 12, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-ftc-spokesperson-tries-to-offer-clarity-but-creates-some-confusion-in-qanda-on-proposed-rule-banning-non-competes; Stakeholders Speak Out During Webinar on FTC’s Proposed Rule Banning Noncompetes (Mar. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-stakeholders-speak-out-during-webinar-on-ftcs-proposed-rule-banning-noncompetes.
[2] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[3] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 1 at 6 (D. Me. Jan. 27, 2022).
[4] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[5] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 182 at 11–12 (D. Me. Feb. 27, 2023).
[6] Id. at 12.
[7] See United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 150 at 16 (D. Me. Jan. 18, 2023); United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 154 at 14 (D. Me. Jan. 23, 2023).
[8] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[9] Bryan Koenig, “Juries Not Buying DOJ Antitrust Labor Push as Losses Mount,” Law360 (Mar. 23, 2023), https://www.law360.com/competition/articles/1588981?nl_pk=cf0430c5-9e28-4f44-be9d-7809592564a8&utm_source=newsletter&utm_medium=email&utm_campaign=competition&utm_content=2023-03-24&nlsidx=0&nlaidx=0.
[10] Department of Justice Prosecutions in Employment-Related Antitrust Suits Fall Flat in Davita Inc. and Jindal (Apr. 27, 2022), https://www.jenner.com/a/web/9fKCeZkCgzc8LW5KkZND2N/4k1Xm6/DOJ_Prosecutions_in_Employment-Related_Antitrust_Suits_Fall_Flat.pdf.
[11] See Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf; United States v. Hee, et al., No. 2:21-cr-00098-RFB-BNW, ECF No. 106 (D. Nev. Oct. 27, 2022).
[12] Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf.
[13] Id.
[14] Dave Michaels, “Aerospace Executives Go to Trial Over Alleged No-Poach Deals,” The Wall Street Journal (Mar. 26, 2023), https://www.wsj.com/articles/aerospace-executives-go-to-trial-over-alleged-no-poach-deals-e9555fda.
[15] See, e.g., “FTC Cracks Down on Companies That Impose Harmful Noncompete Restrictions on Thousands of Workers,” Federal Trade Commission (Jan. 4, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-cracks-down-companies-impose-harmful-noncompete-restrictions-thousands-workers; “FTC Takes Action Against Another Company That Imposed Harmful Noncompete Restrictions on Its Workers,” Federal Trade Commission (Mar. 15, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-takes-action-against-another-company-imposed-harmful-noncompete-restrictions-its-workers?utm_source=govdelivery.

Footnotes

[1] The FTC Proposes Ban on Non-Competes (Jan. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-the-ftc-proposes-ban-on-non-competes; FTC Director’s Comments Continue the Concern and Confusion about Proposed Non-Compete Ban (Jan. 12, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-ftc-spokesperson-tries-to-offer-clarity-but-creates-some-confusion-in-qanda-on-proposed-rule-banning-non-competes; Stakeholders Speak Out During Webinar on FTC’s Proposed Rule Banning Noncompetes (Mar. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-stakeholders-speak-out-during-webinar-on-ftcs-proposed-rule-banning-noncompetes.
[2] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[3] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 1 at 6 (D. Me. Jan. 27, 2022).
[4] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[5] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 182 at 11–12 (D. Me. Feb. 27, 2023).
[6] Id. at 12.
[7] See United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 150 at 16 (D. Me. Jan. 18, 2023); United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 154 at 14 (D. Me. Jan. 23, 2023).
[8] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[9] Bryan Koenig, “Juries Not Buying DOJ Antitrust Labor Push as Losses Mount,” Law360 (Mar. 23, 2023), https://www.law360.com/competition/articles/1588981?nl_pk=cf0430c5-9e28-4f44-be9d-7809592564a8&utm_source=newsletter&utm_medium=email&utm_campaign=competition&utm_content=2023-03-24&nlsidx=0&nlaidx=0.
[10] Department of Justice Prosecutions in Employment-Related Antitrust Suits Fall Flat in Davita Inc. and Jindal (Apr. 27, 2022), https://www.jenner.com/a/web/9fKCeZkCgzc8LW5KkZND2N/4k1Xm6/DOJ_Prosecutions_in_Employment-Related_Antitrust_Suits_Fall_Flat.pdf.
[11] See Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf; United States v. Hee, et al., No. 2:21-cr-00098-RFB-BNW, ECF No. 106 (D. Nev. Oct. 27, 2022).
[12] Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf.
[13] Id.
[14] Dave Michaels, “Aerospace Executives Go to Trial Over Alleged No-Poach Deals,” The Wall Street Journal (Mar. 26, 2023), https://www.wsj.com/articles/aerospace-executives-go-to-trial-over-alleged-no-poach-deals-e9555fda.
[15] See, e.g., “FTC Cracks Down on Companies That Impose Harmful Noncompete Restrictions on Thousands of Workers,” Federal Trade Commission (Jan. 4, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-cracks-down-companies-impose-harmful-noncompete-restrictions-thousands-workers; “FTC Takes Action Against Another Company That Imposed Harmful Noncompete Restrictions on Its Workers,” Federal Trade Commission (Mar. 15, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-takes-action-against-another-company-imposed-harmful-noncompete-restrictions-its-workers?utm_source=govdelivery.

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Client Alert: The Department of Justice Fails to Persuade Jury in Most Recent No-Poach Prosecution Defeat

Publications

March 29, 2023

By: Debbie Berman, Andrew W. Vail, Jason M. Bradford, Joseph Torres

The DOJ Loses Jury Trial on No-Poach Conspiracy Charges.

In the wake of the Federal Trade Commission’s attack on non-competes,[1] the Department of Justice (DOJ) lost its most recent fight in its related battle against no-poach agreements. Last week, in United States v. Manahe et al., a federal jury in the United States District Court for the District of Maine acquitted four defendants of conspiring to fix their employees’ wages in restraint of trade.[2] Prosecutors accused owners of separate home health care agencies of agreeing to not hire each other’s employed caretakers and to not raise their wages above $16 per hour in a purported attempt to preserve profits.[3] After a two-week trial, the jury handed down “not guilty” verdicts on all counts.[4]

While Prosecutors Won on the Law, They Were Foiled by the Facts.

The prosecutors in Manahe secured a favorable interpretation of the antitrust laws, but still failed to demonstrate that the defendants actually entered into an agreement in violation of those laws. Specifically, they convinced the court to treat no-poach agreements as per se violations of the Sherman Act.[5] This meant that as long as the jury found the defendants entered into a no-poach agreement, they could convict without finding that the agreement had anticompetitive effects.[6] Accordingly, the jury was instructed to find the defendants guilty if they were convinced, beyond a reasonable doubt, that the defendants actually entered into an agreement to fix wages and to not hire each other’s employees.[7]

The prosecution presented evidence that the defendants communicated via WhatsApp, Zoom, and in-person meetings about their plans to fix wages and not hire each other’s employees, and even drafted an agreement to that end.[8] Yet, as defense counsel pointed out, the defendants had never actually signed that agreement, nor did they act in accordance with its terms, often paying higher wages than the agreements would have dictated.[9] These evidentiary shortcomings allowed the defendants to prevail.

Manahe Marks the Third Acquittal of Employment-Related Antitrust Defendants.

This is the DOJ’s third loss in its recent push to criminally prosecute employment-related antitrust violations. Last year, juries in United States v. DaVita Inc.—another no-poach case—and United States v. Jindal—a wage-fixing case—acquitted defendants accused of similar misconduct to that charged in Manahe.[10] In fact, the DOJ’s only recent win was achieved via plea deal.[11] The DOJ’s recent enforcement efforts have yet to successfully convict no-poach or wage-fixing defendants in front of a jury.

In all three acquittals thus far, prosecutors could not convince juries to convict under expansive interpretations of the antitrust laws. In Manahe and Jindal, these failures stemmed from weak prosecutorial evidence, with the unsigned agreement in Manahe and the government’s star witness reversing on the stand in Jindal.[12] In DaVita Inc., the DOJ’s loss may have had more to do with jury instructions that veered away from per se liability than the evidence.[13] The import of these impediments—and whether the government may win over juries with cases not bridled by them—remains to be seen.

The DOJ’s Campaign Against No-Poaches Continues this Month.

Despite its track record, the DOJ’s fight against no-poach and wage fixing agreements continues with another case beginning trial this week and expecting to go into May.[14] Regardless of the outcome, the DOJ is sure to persist in its aggressive attempt to secure criminal convictions for no-poach agreements. In parallel, the FTC will continue its crusade against non-competes, through both its proposed rule and its increasingly zealous enforcement strategy.[15] Even with the DOJ’s recent losses, it is important for employers to note that these cases have mostly failed on the facts and that no-poach agreements are still largely considered per se violations of federal antitrust laws. Companies should continue avoiding entering into agreements with competitors to fix wages or to not hire one another’s employees.

[1] The FTC Proposes Ban on Non-Competes (Jan. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-the-ftc-proposes-ban-on-non-competes; FTC Director’s Comments Continue the Concern and Confusion about Proposed Non-Compete Ban (Jan. 12, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-ftc-spokesperson-tries-to-offer-clarity-but-creates-some-confusion-in-qanda-on-proposed-rule-banning-non-competes; Stakeholders Speak Out During Webinar on FTC’s Proposed Rule Banning Noncompetes (Mar. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-stakeholders-speak-out-during-webinar-on-ftcs-proposed-rule-banning-noncompetes.
[2] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[3] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 1 at 6 (D. Me. Jan. 27, 2022).
[4] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[5] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 182 at 11–12 (D. Me. Feb. 27, 2023).
[6] Id. at 12.
[7] See United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 150 at 16 (D. Me. Jan. 18, 2023); United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 154 at 14 (D. Me. Jan. 23, 2023).
[8] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[9] Bryan Koenig, “Juries Not Buying DOJ Antitrust Labor Push as Losses Mount,” Law360 (Mar. 23, 2023), https://www.law360.com/competition/articles/1588981?nl_pk=cf0430c5-9e28-4f44-be9d-7809592564a8&utm_source=newsletter&utm_medium=email&utm_campaign=competition&utm_content=2023-03-24&nlsidx=0&nlaidx=0.
[10] Department of Justice Prosecutions in Employment-Related Antitrust Suits Fall Flat in Davita Inc. and Jindal (Apr. 27, 2022), https://www.jenner.com/a/web/9fKCeZkCgzc8LW5KkZND2N/4k1Xm6/DOJ_Prosecutions_in_Employment-Related_Antitrust_Suits_Fall_Flat.pdf.
[11] See Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf; United States v. Hee, et al., No. 2:21-cr-00098-RFB-BNW, ECF No. 106 (D. Nev. Oct. 27, 2022).
[12] Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf.
[13] Id.
[14] Dave Michaels, “Aerospace Executives Go to Trial Over Alleged No-Poach Deals,” The Wall Street Journal (Mar. 26, 2023), https://www.wsj.com/articles/aerospace-executives-go-to-trial-over-alleged-no-poach-deals-e9555fda.
[15] See, e.g., “FTC Cracks Down on Companies That Impose Harmful Noncompete Restrictions on Thousands of Workers,” Federal Trade Commission (Jan. 4, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-cracks-down-companies-impose-harmful-noncompete-restrictions-thousands-workers; “FTC Takes Action Against Another Company That Imposed Harmful Noncompete Restrictions on Its Workers,” Federal Trade Commission (Mar. 15, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-takes-action-against-another-company-imposed-harmful-noncompete-restrictions-its-workers?utm_source=govdelivery.

Footnotes

[1] The FTC Proposes Ban on Non-Competes (Jan. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-the-ftc-proposes-ban-on-non-competes; FTC Director’s Comments Continue the Concern and Confusion about Proposed Non-Compete Ban (Jan. 12, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-ftc-spokesperson-tries-to-offer-clarity-but-creates-some-confusion-in-qanda-on-proposed-rule-banning-non-competes; Stakeholders Speak Out During Webinar on FTC’s Proposed Rule Banning Noncompetes (Mar. 6, 2023), https://www.jenner.com/en/news-insights/publications/client-alert-stakeholders-speak-out-during-webinar-on-ftcs-proposed-rule-banning-noncompetes.
[2] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[3] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 1 at 6 (D. Me. Jan. 27, 2022).
[4] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[5] United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 182 at 11–12 (D. Me. Feb. 27, 2023).
[6] Id. at 12.
[7] See United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 150 at 16 (D. Me. Jan. 18, 2023); United States v. Manahe, et al., No. 2:22-cr-00013, ECF No. 154 at 14 (D. Me. Jan. 23, 2023).
[8] Cara Salvatore, “Home Health Execs Acquitted in Latest DOJ Antitrust Loss,” Law360 (Mar. 22, 2023), https://www.law360.com/health/articles/1586974?nl_pk=e528abe3-aa8a-430a-9727-c47dbd1f0c81&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-03-23&nlsidx=0&nlaidx=0.
[9] Bryan Koenig, “Juries Not Buying DOJ Antitrust Labor Push as Losses Mount,” Law360 (Mar. 23, 2023), https://www.law360.com/competition/articles/1588981?nl_pk=cf0430c5-9e28-4f44-be9d-7809592564a8&utm_source=newsletter&utm_medium=email&utm_campaign=competition&utm_content=2023-03-24&nlsidx=0&nlaidx=0.
[10] Department of Justice Prosecutions in Employment-Related Antitrust Suits Fall Flat in Davita Inc. and Jindal (Apr. 27, 2022), https://www.jenner.com/a/web/9fKCeZkCgzc8LW5KkZND2N/4k1Xm6/DOJ_Prosecutions_in_Employment-Related_Antitrust_Suits_Fall_Flat.pdf.
[11] See Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf; United States v. Hee, et al., No. 2:21-cr-00098-RFB-BNW, ECF No. 106 (D. Nev. Oct. 27, 2022).
[12] Latest Decisions in Criminal No-Poach and Civil Non-Compete Cases Indicate Continuing Scrutiny of Restrictive Covenants (July 12, 2022), https://www.jenner.com/a/web/vKhfT5AMDGDBhdeqPHu84h/4k1Xmi/Latest_Decisions_Criminal_No-Poach_Civil_Non-Compete_Cases.pdf.
[13] Id.
[14] Dave Michaels, “Aerospace Executives Go to Trial Over Alleged No-Poach Deals,” The Wall Street Journal (Mar. 26, 2023), https://www.wsj.com/articles/aerospace-executives-go-to-trial-over-alleged-no-poach-deals-e9555fda.
[15] See, e.g., “FTC Cracks Down on Companies That Impose Harmful Noncompete Restrictions on Thousands of Workers,” Federal Trade Commission (Jan. 4, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-cracks-down-companies-impose-harmful-noncompete-restrictions-thousands-workers; “FTC Takes Action Against Another Company That Imposed Harmful Noncompete Restrictions on Its Workers,” Federal Trade Commission (Mar. 15, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/03/ftc-takes-action-against-another-company-imposed-harmful-noncompete-restrictions-its-workers?utm_source=govdelivery.

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News and Insights

Event

Associate Steven Arango to Speak at the Veterans' Legal Career Fair

On September 18, Associate Steven Arango will speak on a panel at the Veterans' Legal Career Fair (VLCF), the only legal career fair in the United States dedicated to veterans, active-duty service members, and military spouses.

September 18, 2026

Event

Partner AnnaMarie Van Hoesen to Speak on ABA National Legal Malpractice Conference Panel

Partner AnnaMarie Van Hoesen will join a panel at the National Legal Malpractice Conference hosted by the American Bar Association (ABA) in Las Vegas on September 17.

September 17, 2026

Client Alerts

Back to School: What to Watch This Year in Higher Education Law and Policy

As institutions of higher education prepare for the 2026-2027 academic year, colleges and universities remain in the federal regulatory spotlight. Key areas of expected federal regulatory and enforcement activity include Title VI, federal grants and contracts, accreditation, immigration, foreign gifts and contracts, student loans, gender identity and Title IX, college athletics, and antitrust. Understanding and anticipating these developments will help institutions navigate new compliance obliga

August 25, 2026

News

Jenner & Block Files US Supreme Court Amicus Brief on Behalf of Historians of Education

Jenner & Block filed an amicus brief with the US Supreme Court on August 24, 2026, on behalf of three historians of American education -- Robert N. Gross, Adam Laats, and Ann Marie Ryan -- in support of Colorado officials defending the state's preschool nondiscrimination policy in St. Mary Catholic Parish v. Roy.

August 25, 2026

Publications

Partner Howard Suskin Authors 2026 Edition of LexisNexis’s Practical Guidance Series on Illinois Civil Litigation

Partner Howard Suskin has authored a set of practice guides on Illinois civil litigation for the 2026 edition of LexisNexis's Practical Guidance series.

August 25, 2026

News

Partner Ashley Callen Named Fall 2026 Fellow at the Georgetown University Institute of Politics and Public Service

Partner Ashley Callen, Co-Chair of the firm's Congressional Investigations Practice, has been named a Fall 2026 Fellow at the Georgetown University Institute of Politics and Public Service at the McCourt School of Public Policy. 

August 20, 2026

Publications

In American Banker, Partner Laurel Loomis Rimon Weighs in on OCC's Handling of Fintech Bank Charter Applications

Partner Laurel Loomis Rimon spoke with American Banker about how the Office of the Comptroller of the Currency is approaching bank charter applications from fintechs, amid a growing wave of companies seeking charters from federal regulators.

August 18, 2026

Recognition

Crain's Chicago Business Names Three Jenner & Block Partners to 2026 Notable Leaders in Accounting, Consulting & Law List

Crain's Chicago Business recognized Jenner & Block Partners Annie Kastanek, Wade Thomson, and Andrew Vail among its 2026 Notable Leaders in Accounting, Consulting & Law. The list spotlights firm leaders and practice heads whose work shapes business, civic life, and the courts throughout the region.

August 17, 2026

Event

Partner David Greenwald to Speak at PLI Program on Privilege and AI

On August 17, David Greenwald will speak at "Fitting New “Tech” Into the Attorney-Client Privilege and Work Product Protection," a virtual program hosted by the Practising Law Institute (PLI).

August 17, 2026

Recognition

Partner Neil Barofsky Named Finalist for Attorney of the Year by The American Lawyer 2026 Industry Awards 

Partner Neil Barofsky has been named a finalist for Attorney of the Year by The American Lawyer as part of its 2026 Industry Awards. The award recognizes lawyers whose work over the past year has had significant impact on their clients, the profession, or the public interest. Winners will be announced at the annual gala on November 12 in New York. 

August 17, 2026

Client Alerts

Are You Employing a North Korean IT Worker? What Companies Need to Know to Prepare for and Respond to this Threat

On July 31, 2026, the US Department of State and the FBI, joined by counterpart agencies in Australia, Canada, France, Germany, Italy, Japan, the Netherlands, New Zealand, South Korea, and the United Kingdom, issued a joint alert on North Korean IT workers who use false identities to infiltrate companies and fund North Korea's weapons programs. It’s the latest in a now-familiar cadence of warnings issued roughly once a year since 2022. Since then, sanctions actions, DOJ indictments, “laptop farm

August 13, 2026

News

Jenner & Block Secures Precedential Third Circuit Ruling for Pro Bono Client in Prison Retaliation Case

A Jenner & Block team secured a precedential ruling from the US Court of Appeals for the Third Circuit on behalf of pro bono client Brandon Timmons, an incarcerated person in a Pennsylvania state prison who alleged that a prison official retaliated against him for filing complaints against staff.

August 13, 2026

Recognition

Partner Lauren Hartz Recognized in Bloomberg Law's 2026 "They've Got Next" List

Partner Lauren Hartz was recognized in Bloomberg Law's They've Got Next: 40 Under 40 list for 2026. The annual report recognizes “next-generation lawyers” excelling in a profession being reshaped by AI and new avenues for leadership, service, and success. Lauren, who co-leads Jenner & Block's Education Practice, was recognized in the Education category.

August 13, 2026

Publications

Special Counsel Kimberly Cook Featured in FCBA Member Spotlight

The Federal Communications Bar Association (FCBA) featured Kimberly Cook in its Member Spotlight series.

August 13, 2026

Recognition

Jenner & Block Ranked #3 in The American Lawyer's A-List

Jenner & Block has ranked #3 in The American Lawyer's 2026 A-List — the firm’s highest placement yet among the top 20 elite firms recognized as "the best of the best."

August 12, 2026

Publications

Partner Jan Larson and Summer Associate Averi Suk Discuss California FAIR Plan's Expanding Role in Law360

Partner Jan Larson, Co-Chair of the firm’s Insurance Recovery and Counseling Practice, and Summer Associate Averi Suk co-authored an article for Law360 examining how a historic rate increase, a significant litigation outcome, and a new round of legislation are together reshaping the California FAIR Plan's role in the state's insurance market.

August 12, 2026

Event

Associate Tal Ratner Solovey to Speak on JFEDLA Legal and Tech Network AI Panel

Associate Tal Ratner Solovey will speak on a panel hosted by the Jewish Federation Los Angeles (JFEDLA) Legal and Tech Networks on August 10 in Century City.

August 10, 2026

Recognition

Three Jenner & Block Partners Named to Crain's New York Business' 2026 Notable Leaders in Accounting, Consulting & Law List

Crain's New York Business recognized Jenner & Block Partners Anthony Barkow, Alison Stein, and Damian Williams among its 2026 Notable Leaders in Accounting, Consulting & Law.

August 10, 2026

Recognition

Jenner & Block Earns Firm and Individual Rankings in Chambers Crisis & Risk Management Guide Debut

Jenner & Block earned a ranking in the USA – Nationwide category in its first year featured in the Chambers Crisis & Risk Management Guide. Global Crisis Management and Strategic Risk Practice Co-Chair Joanna Ludlam received an individual ranking in the UK-wide category.

August 7, 2026

Publications

In Law360, Trump Debarment Threat Calls for Targeted Defense Plan

Partners Ashley Callen and David Robbins authored an article for Law360 examining how entities should respond when suspension or debarment is threatened directly by the president, rather than initiated through the usual agency-driven process.

August 6, 2026

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