DOJ Antitrust Department loses first criminal antitrust prosecution

The U.S. Department of Justice’s (DOJ) Antitrust Department has brought several criminal cases against employers for colluding to suppress wages. The push began under the Trump administration, which filed a lawsuit against a staffing agency in the Dallas-Fort Worth area alleging it agreed with rivals to suppress pay of physical therapists. The DOJ has now filed six criminal cases, including prosecutions against employers of home health aides, nurses, and aerospace engineers.

The Biden administration is using the antitrust law in civil cases in lawsuits over worker pay, including a lawsuit against Penguin Random House’s attempt to buy Simon & Schuster on the grounds the resulting publishing giant would have the power to depress advances and royalty payments to authors.

The Biden administration is building on the position of the Obama administration that colluding to fix wages is no different from colluding to suppress prices of other products and that naked wage fixing or no-poach agreements are per se unlawful price fixing. In “Executive Order on Promoting Competition in the American Economy,” President Joe Biden mandated a “whole of government” effort to promote competition across the economy.