February 27, 2020
Over the past several years, antitrust enforcers around the world have sharpened their focus on employers’ use of no-poach and non-compete agreements. In the United States, since the Antitrust Division of the Department of Justice and the Federal Trade Commission jointly issued guidance in 2016 for human resource professionals regarding the application of the federal antitrust laws in this area, the DOJ has emphasized that it has opened investigations into the use of no-poach agreements and clarified its positions, most recently arguing in various Statements of Interest for how the antitrust laws should be applied in this area. State Attorneys General have also opened investigations into the use of no-poach and non-compete agreements, and Attorneys General have offered interpretations of how state competition laws affect these types of agreements. Private civil class actions based on these types of agreements continue to be filed against employers across diverse industries, including franchise companies, railways, and hospitals. In Asia, enforcement of anti-competitive hiring practices is gaining momentum, with regulators in Hong Kong and Japan issuing detailed guidelines on competition law considerations for human resources personnel.
Join Gibson Dunn for a one-hour discussion of these developments.
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Rachel S. Brass is a partner in the San Francisco office where her practice focuses on antitrust and competition law and employment class action litigation. Since the DOJ and FTC issued their Antitrust Guidance for HR Professionals in October 2016, and put HR and employment related conduct in the antitrust crosshairs, Rachel has counseled companies on this antitrust/employment interface, as well as companies in state and federal investigations, and class action litigation. She spoke on these issues recently at the U.S. DOJ’s Public Workshop on Competition in Labor Markets. In addition, Rachel has special broad experience in international competition matters and teaches an upper-level course in International Antitrust Law at Berkeley Law School.
Kristen Limarzi is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher, where her practice focuses on investigations, litigation, and counseling on antitrust merger and conduct matters, as well as appellate and civil litigation. Ms. Limarzi previously served as the Chief of the Appellate Section of the U.S. Department of Justice’s Antitrust Division, where she helped to develop the DOJ and FTC’s Antitrust Guidance for HR Professionals and oversaw the filing of statements of interests by the United States in private suits challenging no-poach arrangements. In addition, she recently participated in the FTC’s Public Workshop on Non-Compete Clauses in the Workplace.
Sébastien Evrard is a partner in the Hong Kong office of Gibson, Dunn & Crutcher, where he is a member of the firm’s Antitrust and Competition Practice Group. Based in Asia since 2010, Mr. Evrard handles complex antitrust matters throughout Asia, including merger control, non-merger investigations, and litigation. His practice also focuses on the antitrust aspects of intellectual property rights. Mr. Evrard’s experience spans a wide range of industries including aviation/shipping, banking, energy/mining, media/entertainment, software/hardware, telecommunications, pharmaceuticals, automotive, and fast moving consumer goods. He has represented clients before multiple regulators in Asia and Europe, and has litigated cases in multiple jurisdictions. He speaks English, French and Dutch.
Matthew Parrott is an associate in the Orange County Office of Gibson Dunn and a member of the firm’s Antitrust and Trade Regulation Practice Group where his practice focuses primarily on antitrust and competition litigation and counseling. In recent years, Mr. Parrott has represented and counseled clients on antitrust issues related to no-poach provisions in various settings. He also represents clients in criminal and civil antitrust litigations and investigations, class actions, alternative dispute resolution proceedings, and appeals. Mr. Parrott is experienced in all phases of litigation—from drafting and responding to pleadings to conducting trials and appeals.
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