Carl Hittinger, Tyson Herrold Examine Wave of No-Poach Class Actions

Articles / May 7, 2018

Partner Carl Hittinger and Associate Tyson Herrold authored an article published by The Legal Intelligencer on May 5, 2018. The article, “Class Actions Now Flowing from FTC and DOJ’s No-Poach Enforcement,” discusses the increase of class action lawsuits brought under Section 1 of the Sherman Act against national franchises for imposing employee no-hire agreements on their franchisees.

Hittinger and Herrold discuss how the courts will likely not analyze such agreements under the per se rule and they discuss the developing case law around the ancillary restraint doctrine. They conclude:

[G]iven the U.S. Supreme Court’s reluctance to extend the per se rule and the growing popularity of the ancillary restraint doctrine to no-hire agreements, it is likely that courts will use the rule of reason, complete with its balancing factors and complex factual and expert underpinnings that can foster a myriad of defenses.

Read the article.