Naked horizontal no-poach agreements among competing employers are treated as market allocation subject to per se condemnation. Agreements ancillary to legitimate collaborations receive rule of reason analysis.
Criminal enforcement has been attempted with mixed results.
Alternative Names:
No-Poach|Anti-Poaching Agreement
Why it Matters?
The ancillary restraint distinction determines the standard, and agreements reasonably necessary to a legitimate joint venture, franchise system, or services arrangement receive rule of reason treatment rather than per se condemnation. Franchise no-poach provisions have been analyzed as vertical or ancillary in several decisions. Criminal prosecutions have produced acquittals, though civil exposure and state enforcement continue independently.
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Frequently asked questions
What determines the standard?
Has criminal enforcement succeeded?
