USA – WASHINGTON Trends and Developments Contributed by: Jordanne M. Steiner and Kenneth R. O’Rourke, Wilson Sonsini Goodrich & Rosati
no-poach agreement among franchisees that compete for workers. Exchanges of competitively sensitive information among companies that compete for workers The 2025 Guidelines state the agencies’ intent to investigate exchanges of competitively sensi - tive information among companies that compete for workers, including exchanges of information about compensation or other terms or condi - tions of employment and other exchanges of information that harm competition for workers. They note that such exchanges may be unlaw - ful when the information has, or is likely to have, an anti-competitive effect, whether or not that effect was intended. The 2025 Guidelines also note the agencies’ view that such exchanges may be illegal even if the companies use a third party or intermedi - ary, including a third -party using an algorithm, to share the information. Additionally, the 2025 Guidelines align with more recent Statements of Interest filed by the DOJ (see Section on Increased Focus on Interactions Between Com - petitors) noting that the exchange of such infor - mation may support the existence of a wage- fixing conspiracy. Employment agreements that restrict workers’ freedom to leave their job The 2025 Guidelines note the agencies’ intent to investigate, on a case-by-case basis, employ - ment agreements restricting workers’ freedom to leave their job, including non-compete agree - ments preventing workers from joining a com - peting or potentially competing employer or requiring workers to pay a penalty upon leaving their job. This statement comes on the heels of a federal district court in Texas issuing a nation - wide injunction, preventing the FTC’s final rule
blocking almost all non-competes from taking effect (see here ). Other restrictive, exclusionary or predatory employment conditions that harm competition The 2025 Guidelines describe the agencies’ intent to investigate all restrictive, exclusion - ary or predatory employment conditions that harm competition, including but not limited to overly broad non-disclosure agreements, train - ing repayment agreement provisions, non-solic - itation agreements that prohibit a worker from soliciting former clients or customers of the employer, and exit fee or liquidated damages Finally, the 2025 Guidelines note the agencies’ intent to investigate and take action against businesses that make false or misleading claims about potential earnings that workers may real - ise. Going forward, we anticipate new cases being brought by the DOJ and/or the FTC, in which the 2025 Guidelines will feature as a point of discussion. With those developments will come, perhaps, more guidance on interpretation of the 2025 Guidelines and insight into the degree to which the agencies will rely on them and how they will be used. Private cartel litigation is the second principal enforcement tool In the United States, private cartel-related civil cases are a powerful enforcement tool separate from but supplementing the DOJ’s criminal pros - ecutions. The private civil cases generally take the form of class actions brought on behalf of direct and indirect purchasers of the affected products. Often, but not always, a civil case will be filed following an announcement of an anti - provisions (see here ). False earnings reports
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