Abstract
Authors Jeffrey C. Bank and Jordanne M. Steiner provide new insight into the evolving legal standard applicable in no poach cases and wage-fixing cases. The authors begin by providing a brief history of the US antitrust laws as applied to labor markets and an overview of the generally applied legal standards in US antitrust law (per se and rule of reason), before describing the Department of Justice’s recent efforts in no poach and wage-fixing matters. The authors analyze the jury instructions given in each case, comparing them to jury instructions given in more traditional, alleged counterpart claims (market allocation for no poach cases and price fixing for wage-fixing cases). Ultimately, the authors conclude that, although courts have ordered that the per se standard should apply to the alleged labor conduct, the jury instructions in the no poach cases reflect a willingness to consider evidence more typically relevant in rule of reason cases.
Published Version
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