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Wednesday, February 3, 2021 In 2016, the Department of Justice (DOJ) and Federal Trade Commission (FTC) jointly issued anti-trust guidance treating no poach or wage fixing agreements as possible criminal violations of the Sherman Act. Two health care related entities have now become the first to face criminal prosecutions under the 2016 Guidance. Sherman Act Very broadly, the Sherman Act, which was passed in 1890, is one of the core federal antitrust laws. It prohibits “every contract, combination, or conspiracy in restraint of trade” and “any monopolization, attempted monopol...

Introduction As part of our ongoing series on Canada's deferred prosecution agreement (" DPA") program, we have considered the use of DPAs in other jurisdictions, including in the United States of America, where we are seeing an increased use of DPAs in the antitrust sphere. In this bulletin, we look again to the United States, and discuss the DPA recently entered into by Argos USA LLC (" Argos") with the United States Department of Justice (the " DOJ"). The Argos DPA On January 4, 2021, the DOJ announced that it had charged Argos, a producer and seller of ready-mix concrete headquartered in ...

per se theory , this will significantly lighten the government’s burden of proof because it assumes the anticompetitive and unlawful character of the agreement.  In civil enforcement cases and statements of interest, DOJ has consistently argued that no-poach and wage-fixing agreements are illegal per se.  Although DOJ has obtained several consent decrees which indicate that such agreements are illegal per se, civil cases generally resolve through settlement, and as the 2019 decision in In re Railway Ind. Employee No-Poach Litigation (W.D. Pa No. 18-798) recognizes, the law on this issu...

UPDATE: Feb. 24, 2021: Pilgrim's Pride pleaded guilty and agreed to pay a $107.9 million fine to the U.S. Justice Department to settle federal charges that it conspired to increase chicken prices and pass those costs on to consumers and other poultry buyers. Pilgrim’s is the first company to plead guilty. Separately, an Illinois judge approved a deal where Tyson will pay $80 million to broiler chicken purchasers, while Pilgrim's Pride will pay $75 million to resolve their claims. UPDATE: Jan. 20, 2021: Tyson Foods said in a regulatory filing with the U.S. Securities and Exchange Commi...