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No Cold Calling Agreements
In recent months, the Antitrust Division of the U.S. Department of Justice (“DOJ”) has demonstrated what many view as a newly aggressive approach toward challenging agreements between businesses not to poach each other's employees. In particular, the DOJ has brought legal challenges targeting a number of significant employers in the high-tech sector for their agreements not to cold call each other's talent.
Not unlike the businesses targeted by the DOJ, law firms compete with one another in an increasingly fluid market for scarce associate legal talent. And it's not uncommon for firms to seek to prevent legal recruiters who place lawyers with them from simultaneously recruiting away the firm's lawyers for placement with competitors. Accordingly, while the recent enforcement efforts might be distinguished in some ways from the typical legal industry setting, law firms and their leaders would be well advised to keep in mind the DOJ's stance as reflected in its recent suits, the potential impact it may have on no poaching arrangements in the legal industry, and the questions that remain unanswered by the DOJ's recently proposed settlements.
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