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Over eight years ago, in 2016, the U.S. Department of Justice Antitrust Division (“DOJ”) signaled a policy shift toward criminally charging anticompetitive conduct in labor markets. Since then, DOJ has brought a handful of labor market cases focused on so-called “no-poach” agreements and/or wage-fixing agreements, largely without success – until now. On April 14, 2025, a federal jury convicted Eduardo “Eddie” Lopez, a home health agency executive in Nevada, for participating in a three-year conspiracy to fix the wages of home healthcare nurses in Las Vegas and for fraudulently failing to disclose the existence of the criminal antitrust investigation against him during the sale of his business. This executive, who is scheduled to be sentenced in July, faces up to 10 years in jail and a $1 million criminal fine for participating in the wage-fixing conspiracy and up to 20 years in jail for wire fraud.
Notwithstanding its poor track record with these cases, DOJ’s newly appointed leader, Assistant Attorney General Abigail Slater, has made it clear that criminal labor market enforcement, at least as it relates to wage-fixing cases, is poised to continue. In her words: “[w]age-fixing agreements are nakedly unlawful attempts at unjustly profiting off American workers” and “[t]oday’s verdict highlights what should be a clear message with antitrust crimes: the agreement is the crime. The Antitrust Division will zealously prosecute those who seek to unjustly profit off their employees. The nurses here deserved better and, under President Trump’s leadership, they will be protected.”
From our perspective, it is unsurprising that DOJ has been successful in a wage-fixing case, which is akin to traditional price-fixing. We think non-solicitation, or “no-poach” cases, will remain an uphill battle for DOJ, especially when such cases are in front of juries. Nevertheless, companies should be aware that DOJ continues to look closely for potential anti-competitive conduct in labor markets notwithstanding the change in presidential administration.
In March 2023, a federal grand jury returned a one-count felony indictment charging Lopez, who oversaw recruitment, hiring, retention and assignments of nurses and other health care staff at three different home health agencies, with conspiring to fix the wages of Las Vegas nurses between March 2016 and May 2019. A few months later, in September 2023, a grand jury returned a superseding indictment adding wire fraud charges. According to the superseding indictment, Lopez sold his health care staffing company for over $10 million and falsely represented to the buyer of his company that federal law enforcement was not investigating him or his company. But, according to court documents, Lopez knew that was false.
To prove its case, DOJ relied on text messages, recorded conversations, and the testimony of a cooperating witness. For example, one text message from Lopez, which is excerpted in the superseding indictment, explicitly stated that he had just had a lunch with certain competitors, had concluded they were “all in the same boat for staffing,” and “had a mutual agreement that with the pay increase, all 3 companies [would] stay within the same hourly rate.” The recorded conversations were from the cooperating witness, who was directed to record conversations with Lopez that were played to the jury during trial.
The jury trial commenced on March 24, 2025 and concluded on April 14, 2025 with a guilty verdict on all counts. On the same day, Lopez’s counsel filed a now-pending motion for mistrial, arguing that DOJ violated Lopez’ Fifth and Sixth Amendment rights in its closing arguments by (i) using a privileged communication to support the intent and violation of the wire fraud statute in violation of the Fifth Amendment right to a fair trial and Sixth Amendment right to effective assistance of counsel, (ii) separately calling attention to defense counsel changing firms in violation of a court order and the Sixth Amendment, and (iii) because of the prejudicial impact of the privileged evidence on the Sherman Act count.
To date, DOJ has brought two wage-fixing cases (Lopez and Jindal), three no-poach cases (Surgical Care Affiliates, DaVita, and Patel), and two cases involving both no-poach and wage-fixing theories (VDA OC LLC and Manahe). These cases, which have largely centered around the healthcare sector, concluded as follows:
| Outcomes | Cases |
| Conviction | Lopez |
| Guilty via Plea Agreement | VDA OC LLC |
| Acquittal | Jindal (by jury); Da Vita (by jury); Patel (by judge); Manahe (by jury) |
| Dismissal | Surgical Care Affiliates (DOJ dismissed indictment) |
Overall, DOJ has struggled to meet its evidentiary burden at trial, resulting in several labor market cases being dismissed. Juries, in particular, appear skeptical that no-poach agreements warrant criminal prosecution. DOJ has, however, succeeded in establishing that naked no-poach and wage-fixing agreements may be the proper subject of criminal prosecution in the right circumstances.
Going forward, although Slater has made it clear that DOJ will continue to focus on criminal labor market cases, it remains to be seen how its approach to selecting such cases for prosecution may change under the new administration, and in light of the challenges DOJ has faced in bringing these types of cases.
Especially in light of DOJ’s success in Lopez, we would not be surprised to see DOJ focus more on wage-fixing cases than no-poach cases. Juries are clearly more comfortable concluding that wage-fixing—much like traditional price-fixing—constitutes criminal conduct. We also suspect DOJ will be on the look-out for cases with cooperating witnesses and direct evidence (as opposed to circumstantial evidence), which DOJ had the benefit of in this case, as well as cases where multiple types of charges can be laid (e.g., fraud, as we saw here, or obstruction as we saw in Jindal).
18 April 2025
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