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Federal and State Antitrust Enforcers Double Down on Stance Against No-Poach Agreements, Urging 2nd Circuit in Amicus Briefs to Revive High-Fashion Case

 |  August 18, 2023

By: Bridget S. McCabe & Matt Schock (Antitrust Advocate)

In a recent display of their ongoing opposition to labor market constraints, both state and federal authorities have taken a stand through two recent amicus briefs, advocating for the reversal of the dismissal of a no-poach case within the 2nd Circuit. On August 4th, a consortium comprised of twenty-one state attorneys general and the U.S. Department of Justice Antitrust Division jointly submitted amicus briefs in the case of Giordano et al. v. Saks & Co. et al., beseeching the 2nd Circuit Court of Appeals to resurrect antitrust allegations made by former employees of Saks department store and other retail establishments. These employees’ claims were initially rejected by the district court in the Eastern District of New York earlier this year in March.

These latest amicus briefs contribute to a series of similar submissions by governmental bodies in private labor-related antitrust litigations. The crux of their argument is that purported competitive limitations imposed on employee compensation, benefits, and mobility should be subjected to rigorous examination under antitrust statutes. Additionally, these briefs embody an evolving enforcement stance concerning the statute of limitations outlined in the Sherman Act. Namely, they contend that the statute should not serve as a barrier to pursuing legal action against alleged anti-competitive agreements that may have originated before the limitations period but persisted within it, leading to ongoing detrimental effects…