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For the first time ever, DOJ criminally indicts business for agreeing not to solicit another’s employees

In 2016, the Department of Justice Antitrust Division and the Federal Trade Commission announced in its Antitrust Guidance for Human Resources Professionals that it intended to proceed criminally to enforce non-solicitation agreements between business competitors. In U.S. v. Surgical Care Affiliates and Scai Holdings, LLC (N.D. Tex. 2021), the DOJ finally carried through on that threat this year. Specifically, the DOJ filed its first-ever criminal indictment in federal district court, alleging that Surgical Care Affiliates, LLC (“SCA”) entered into an agreement with a competitor (“Company 1”) not to solicit each other’s senior-level employees, and that this agreement constituted an unlawful conspiracy in violation of Section 1 of the Sherman Act. Read more…