Division of Labor: Recent Trends in Criminal Antitrust Enforcement

Day One of the ABA White Collar Crime Conference in San Francisco featured a compelling panel on antitrust enforcement. Discussion among federal and state enforcers, including Emma Burnham (Director of Criminal Enforcement, Antitrust Division, DOJ) and Paula Blizzard (Senior Assistant Attorney General, Antitrust Law Section, California Department of Justice) sent a clear message that federal and state authorities intend to coordinate efforts to investigate and prosecute antitrust offenses.

Burnham specifically highlighted DOJ’s efforts to update investigative methods in light of developing technology. According to Burnham, DOJ is focused on speeding up investigations and trying to collect evidence in real time, through methods such as wiretaps. As a result, DOJ is prioritizing its investigative efforts on ephemeral messaging and other electronic communication tools. Burnham contrasted old-fashioned investigative techniques, such as relying on leniency applicants and methodically developing evidence through cooperation, with DOJ’s current approach. Additionally, Burnham reaffirmed DOJ’s commitment to criminally prosecute monopolization offenses that evidence clear anticompetitive intent with no credible procompetitive justification, as well as naked wage-fixing and no-poach agreements. Burnham acknowledged significant setbacks in recent trial results, but averred that DOJ remains undeterred in “following the facts and the law” wherever they might lead.

Blizzard, for her part, explained that California has its own antitrust statutes that provide for criminal penalties against both companies and individuals. Blizzard highlighted that state attorneys general across the country have become much more active in recent years, independently investigating and pursuing alleged antitrust violations, and along those same lines, California may increase its focus on labor-market antitrust issues. Blizzard referenced pending bills in the California legislature that (1) void any non-compete agreements regarding labor, whether or not employees are party to the agreement, and (2) allow employees to obtain damages and injunctive relief if an employer violates the non-compete ban. Importantly, although California law provides for certain specified exceptions, Blizzard reiterated that economic reasonableness is not a defense under these laws. Companies operating in California should follow these developments and update their employment policies as needed.

More to come here from San Francisco! Continue to follow Enforcement Edge for updates.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.