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Over the last three years, the U.S. Department of Justice has pursued its first-ever criminal antitrust cases targeting alleged deals between companies to avoid poaching each other's employees and to fix wages. In total, the DOJ has brought six cases.

Four resulted in acquittals, while just one case yielded guilty pleas. Last month, the DOJ voluntarily dismissed its sixth and last case without explanation.

A number of lessons can be drawn from this wave of labor-market prosecutions. In terms of a legal theory, the DOJ did quite well.

Courts denied motions to dismiss these cases and endorsed the DOJ's theory that no-poach or wage-fixing deals untied to a legitimate collaboration could constitute per se illegal agreements among competitors.

But when it came to the ultimate merits of the cases, these courts required the DOJ to prove at trial that the defendants making no-poach deals intended to end meaningful competition in the relevant labor market — a high bar the DOJ apparently had difficulty meeting. And even after finding no-poach deals to be per se illegal, these courts permitted the jury to consider evidence of the schemes' pro-competitive benefits as probative of the defendants' intent.

To continue reading Bill Cavanaugh, Amy Vegari, and Andrew Haddad's article in Law360, please click here.