In October 2023, the Department of Justice Antitrust Division quietly issued a policy memo that most compliance officers missed because it arrived in the middle of earnings season. The memo announced that the Division would resume criminal prosecution of wage-fixing and no-poach agreements between competitors — agreements that, for a brief and confusing period following the 2021 acquittal in United States v. DaVita, many practitioners had assumed were safely in civil territory.
They were wrong then. They are more wrong now. The Division has since won two criminal wage-fixing convictions — one in the healthcare staffing sector, one in the poultry processing industry — and both decisions contain language that should concern any general counsel whose company competes for talent in a concentrated labor market.
"The question is no longer whether wage-fixing is criminal. The question is whether your HR team knows what a wage-fixing agreement looks like when it's dressed up as a benchmarking call."
The practical implication is specific and actionable: if your sales team or HR team participates in industry compensation surveys administered by trade associations, and if the survey results are shared in a way that allows participants to calibrate offers against competitor data before extending them, you may have a problem that your antitrust counsel has not yet flagged.