INTRODUCTION Contributed by: Mark Rosman, Proskauer
mandates, companies need to understand the implications of sharing strategies and informa - tion that could affect pricing or output. Labour market allocation Many jurisdictions now view agreements not to hire or solicit employees (“no poach”) or agree - ments related to wages as cartel offences. In the United States, this conduct is viewed as criminal conduct (see United States v DaVita Inc., No 1:21-cr-00229 (D. Col.); see also Unit - ed States v Lopez, No 2:23-cr-00055 (D. Nev.); DOJ Press Release, Jury Convicts Home Health Agency Executive of Fixing Wages and Fraudu - lently Concealing Criminal Investigation (14 April 2025)). However, when necessary to a joint venture, potential acquisition or other business collabo - ration, such discussions can be legitimate and legal. Understanding where the lines are drawn in this new and expanding area of enforcement is critical. Messaging applications and chat platforms Another form of technology presents chal - lenges in cartel cases: messaging apps and chat platforms. The use of email and text mes - saging is rapidly being replaced by communi - cations through messaging applications and
chat platforms. Many such apps are designed to be ephemeral and are not archived or saved. Increasingly, employees are communicating internally and externally through messaging applications, and when using their personal devices, mixing business and personal commu - nications on the same device. The key evidence in a cartel matter often involves written competitor communications. If such communication takes place through ephemeral messaging, counsel and companies seeking to understand the facts may be stymied. Regu - lators now expect companies to find a way to preserve and maintain such communications or face penalties such as fines, contempt or even obstruction of justice (Case COMP/40882 – IFF – deletion of data, Comm’n Decision (24 June 2024); see also: United States v DaVita Inc., No 1:21-cr-00229 (D. Col.)). Conclusion Change is a constant. In the face of such turbu - lence, it is important to review guides like this one, that will help practitioners and companies understand the dynamics and nuances of cartel practice across the globe. Having such informa - tion at the ready and for reference will help to successfully navigate and adapt to these chal - lenges.
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