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Business Crimes BulletinFeaturesAntitrustRegulationWhite Collar Crime

Recent DOJ Losses In Antitrust Cases Don't Tell the Whole Story

By Jennifer Fischell and Thomas Schubert
August 01, 2023

Many of the Biden Administration's antitrust enforcement actions have involved attempts to regulate anticompetitive conduct in labor markets by means of the antitrust laws. Recently, for example, DOJ has criminally prosecuted defendants for allegedly engaging in wage-fixing and using "no-poach" agreements to restrict competition. And it has successfully blocked a proposed merger using a novel, labor-centric theory. See, "Judge Blocks a Merger of Penguin Random House and Simon & Shuster," Biden's FTC, meanwhile, has proposed a rule restricting the use of noncompete agreements.

But some recent labor-market enforcement attempts have floundered: High-profile criminal prosecutions keep resulting in acquittals. So the question becomes: "What do those losses mean for labor-side antitrust law?"

Less than you might think. Although some commentators have wondered whether the acquittals mean DOJ will stop prosecuting labor-side antitrust cases (see, "Is 'No Poach' No More?," Miller & Chevalier), criminal prosecutions are only a small piece of the Administration's antitrust agenda. And even in cases where defendants have been acquitted, the government has won on significant legal issues along the way. Such wins — combined with other antitrust-revitalization initiatives — may well be pushing both civil and criminal antitrust law in exactly the direction, if not quite the distance, the Biden Administration hopes to move it.

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