Antitrust

For at least the last three presidential administrations, antitrust agencies have analyzed potential adverse effects of mergers and conduct on workers as well as consumers. That scrutiny—and the policy discussion about labor antitrust more generally—increased significantly during the Biden administration, as officials promised early in their term that labor would be at the forefront of their agenda, and they followed through with both policy and enforcement actions. The Department of Justice (“DOJ”) aggressively prosecuted businesses under antitrust laws to challenge no-poach and wage-fixing agreements and the Federal Trade Commission (“FTC”) adopted a non-compete rule. The Antitrust Agencies jointly issued revised Merger Guidelines that called out potential labor harms, and the FTC followed with a first-of-its kind claim that a merger would lessen competition in the market for “unionized labor.” Finally, in the midst of that challenge, the Antitrust Agencies entered into a quadrilateral Memorandum of Understanding with Labor Agencies to “enhance antitrust review of labor issues in merger investigations.”

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