Brent W. Johnson, a Partner in Cohen Milstein’s Antitrust practice group, has been invited to speak on an American Bar Association (ABA) Antitrust Law Section teleconference, entitled “Rule-of-Reason v Per Se: The Ongoing No-Poach Litigation Debate” on July 30, 2019.
Courts and antitrust enforcement agencies continue to evaluate the proper standard to apply to claims based on no-poach agreements, both in franchise agreements and in other contexts. The Antitrust Division of the Department of Justice has made its views known through public statements and court filings, while state agencies -- the Washington Attorney General's office in particular -- have articulated their own views. And of course plaintiffs and defendants in civil litigation have expressed their views as well.
Not only is the proper standard to evaluate no-poach agreements contested, but also when this determination should be made. Typically defendants have pushed courts to decide early in litigation and based on the pleadings that a rule-of-reason standard should be applied, while plaintiffs have frequently argued that the proper mode of analysis is fact specific and therefore properly reserved for after discovery.
Companies are focused on how to navigate the no-poach landscape and whether standards may differ under federal and state law or based on the specific terms of their franchise or other commercial agreements is not entirely clear.
This CLE program aims to provide an overview of the latest updates and explain each side of the debate, including the economic literature.