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Enforcers are increasing their focus on labor market competition issues, not only in the United States but also in Canada, Colombia, Mexico, and the European Union (both at the supranational level by the European Commission and by national enforcers in Poland and Portugal). Of note, competition authorities have launched investigations concerning labor market collusion in professional sports in Colombia, Mexico, Poland, and Portugal for football and basketball players. In December, the US Department of Justice's Antitrust Division (DOJ) brought its first criminal case in the aerospace industry following four pending criminal cases in the healthcare industry.
Global enforcers continue to focus on digital markets, including the role of algorithms and artificial intelligence in coordination and price fixing. In November, 13 competition agencies from the G7 countries and four guest countries issued a Compendium of Approaches to Improving Competition in Digital Markets that addressed, among other issues, potentially illegal coordination through algorithm.
Key sectors involving global cartel enforcement activity--and those that are likely to be a continuing focus in 2022--include aerospace, agriculture and food, construction, energy, financial services, healthcare and life sciences, infrastructure, procurement, retail and ecommerce, technology and the digital economy, telecommunications, and transportation.
While total fines increased overall in 2021 for several competition agencies, fines in a number of jurisdictions were flat or lower than in 2020. COVID-19 remains a contributing factor to the slower pace of cartel investigations in several jurisdictions.
In two primary respects, the prolonged global pandemic, spanning more than 22 months, has had an impact on cartel investigations and fines. First, while enforcers have continued with investigations, the ability to conduct dawn raids and use other enforcement tools is hampered by the ups and downs of the pandemic and remote work of most enforcers. Some enforcers, including those in Brazil, noted that the pandemic was a contributing factor to fewer case resolutions. As a result, dawn raids can be expected to rebound strongly next year should the pandemic subside. Notably, the European Commission has stated that it intends to increase its enforcement efforts in this area and has already conducted dawn raids in the wood pulp and life sciences sectors in the third quarter of 2021.
The second impact from the global pandemic is the redirection of enforcement resources to monitor fraud, price gouging, and related schemes associated with public assistance funds during the pandemic, and conduct exploiting pandemic assistance. Many jurisdictions reorganized and created task forces including, for example, the Australian Competition & Consumer Commission's (ACCC) COVID-19 Enforcement Taskforce.
Labor Market US Enforcement: Recent speeches by high-ranking officials at the DOJ forecast vigorous antitrust enforcement in labor markets, particularly with respect to so-called "no poach" agreements (no-hire or nonsolicitation agreements), wage-fixing agreements, and unlawful information sharing among employers. One key speech on October 1 noted that, "[t]he Division views rooting out collusion in labor markets to be part of its mission to deter, detect, and prosecute cartels more generally. Accordingly, the [Antitrust] Division has invested the substantial time and resources required to ensure vigorous competition in labor markets because the proper administration of the law requires it." As part
On December 6 and 7, the DOJ and US Federal Trade Commission (FTC) held a joint workshop called "Making Competition Work: Promoting Competition in Labor Markets" to "discuss efforts to promote competitive labor markets and worker mobility." The federal agencies intend to make labor market competition a continued enforcement priority.
DOJ Labor Market Criminal Cases: The Antitrust Division has four pending criminal "no poach" cases in Washington, DC, Colorado, Texas, and Nevada involving healthcare companies. In November, a district court in the Eastern District of Texas denied a motion to dismiss the indictment on the DOJ's firstever criminal wage-fixing case. The enforcement authority of the DOJ to prosecute agreements not to solicit is being challenged in two cases in which motions to dismiss are pending. Read DOJ Antitrust Division Brings First Criminal Wage-Fixing Case: Continuing Enforcement on Labor Market Issues.
On December 16, an indictment was returned in a case charging six aerospace executives in a conspiracy to agree not to hire or solicit employees from each other's companies. According to the DOJ, "[t]he conspiracy affected thousands of engineers and other skilled workers in the aerospace industry who perform services in the design, manufacturing and servicing of aircraft components for both commercial and military purposes." This is the first DOJ criminal no-poaching case outside the healthcare industry and under the leadership of new Assistant Attorney General Jonathan Kanter (see summary below on New Antitrust Division Leadership), who stated on the announcement of the case that the DOJ and its law enforcement partners "will continue to hold individuals and companies accountable for criminal conduct aimed at depriving workers of the myriad benefits that flow from competition." More labor market competition cases are anticipated.
Labor Market State Enforcement: State enforcement agencies also have aggressively pursued antitrust enforcement in labor markets. For example, on September 9, the New York Attorney General's Antitrust Bureau announced that one of the four largest title insurance underwriters in the United States agreed to pay a civil penalty of $1 million to resolve allegations that it entered into anticompetitive nopoach agreements with independent title agencies. The insurance underwriter also agreed to terminate its purported no-poach agreements and cooperate with New York's ongoing investigations in this area.
Labor Market International Enforcement: While the United States has increased its focus on labor market competition since the announcement of the October 2016 Antitrust Guidance for Human Resource Professionals by the DOJ and FTC, other enforcers around the world have opened labor market investigations and/or issued guidelines or statements on enforcement in this area. Recent examples include the following:
Canada: Updated Guidelines: On May 6, the Competition Bureau released its updated Competitor Collaboration Guidelines (CCGs). The CCGs confirm that "purchasing agreements, including employee non-poaching and wage-fixing agreements, may be subject to review under the reviewable matters provisions in" the Competition Act. More recently, on October 20, Commissioner of Competition Matthew Boswell noted that concerns had been identified about "[g]aps in our cartel law, which mean that those conspiracy provisions do not protect workers from egregious agreements between competitors that fix employees' wages and restrict workers' job mobility."
Colombia: Professional Football Leagues: On November 29, the Colombian competition authority, Superintendence of Industry and Commerce (SIC), announced an investigation against the organization that operates professional football leagues (Divisin Mayor del Ftbol Profesional Colombiano), 16 professional soccer teams, and 20 individual club managers and league heads, based on a complaint that they were participating in an alleged no-poach agreement.
European Commission: New Enforcement Focus: On October 22, Executive Vice President Margrethe Vestager confirmed in a speech titled "A New Era of Cartel Enforcement" that, for the first time, the commission will focus on labor market competition, including no-poach and wage-setting agreements, as means of "restricting talent from moving where it serves the economy best."
Mexico: Football Federation: On September 23, the Board of Commissioners of the Federal Economic Competition Commission (COFECE) fined 17 clubs and eight people $8.5 million (MX$177.6 million) for colluding by (a) agreeing to maximum wage caps for women players (removing labor competition and deepening the gender pay gap) and (b) segmenting the market for male players (by restricting labor mobility through preventing them from negotiating and signing with new teams).
Poland: Basketball League: On April 12, the Office of Competition and Consumer Protection announced an investigation against the men's basketball league and 16 teams, alleging collusion on "the terms for terminating the players' contracts and agree[ing] to withhold the players' remunerations among themselves."
Portugal: Football League: On April 13, the Portuguese Competition Authority (AdC) issued Statements of Objections concerning a no-poach agreement involving the Portuguese Professional Football League and 31 football clubs participating in the 2019/2020 edition of the First and Second Professional Football Leagues. On April 26, the AdC issued a warning about anticompetitive agreements in the labor market. On September 21, the AdC issued a "Best Practices Guide in Preventing Anticompetitive Agreements in Labor Markets."
UK and US Trend: For more information on how the laws in the United Kingdom and United States are increasingly taking a more restrictive view on the permitted scope of exclusivity and noncompete clauses, read Exclusivity, Noncompetes, and No Poaching: Navigating UK and US Employment and Competition Laws and Mitigating the Risk of Enforcement Actions and Litigation from `No Poach' and Other Agreements.
Broadened Enforcement on Cartel Conduct: Traditionally, cartel enforcement is focused on collusion involving price fixing, bid rigging, or market allocation. Two key cases highlight an expanded application of collusion and cartel conduct. Both cases raise questions as to whether this enforcement precedent may be used in future enforcement actions.
First, on July 8, the European Commission imposed an 875 million euros ($983.5 million) fine on five automobile manufacturers for colluding "to restrict competition in the area of emission cleaning technology for diesel cars." The commission noted that "this is the first cartel prohibition decision based solely on a restriction of technical development and not on price fixing, market sharing or customer allocation." The commission concluded that competition was reduced based on the "agreement on AdBlue tank sizes and ranges and a common understanding on the average estimated AdBlueconsumption." The automobile manufacturers "also exchanged commercially sensitive information on these elements. They thereby removed the uncertainty about their future market conduct concerning NOx-emissions cleaning beyond and above the legal requirements (so called `over-fulfilment') and AdBlue-refill ranges."
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