9 grudzień 2020
Ftc No Poach Agreements
Autor: Anna Pilsniak. Kategorie: Bez kategorii .
In any event, the applicants have argued similar facts: the franchisor and the franchisee have entered into agreements that prohibit franchisees from recruiting or recruiting employees from other franchisees or franchisors. The parties submitted dismissal applications and the parties to the proceedings expressed differing views on whether a franchisor and a franchisee could conspire within the meaning of Section 1 of the Sherman Act and what rule of analysis should govern whether the no-poach agreements between the franchisors and their franchisees violate Section 1. 7 Non-competition agreements may also arise from agreements between a producer and a distributor, a licensee and a licensee, or between the parties to a joint venture. See z.B., Polk Bros., Inc. v. Forest City Enters., Inc., 776 F.2d 185 (7 cir. 1985). These non-competition obligations are also subject to review in terms of cartels and abuse of dominance, but this note does not detail their treatment. While these agreements may be used to protect legitimate business interests, they may also constitute restrictions on the competitiveness of the restricted party in the market of certain products or services (in the case of a non-competition clause) or workers (in the case of a non-subsidy or incompetence agreement). As a result, they are subject to a review of cartels and abuse of dominance. Antitrust authorities and courts recognize that many such agreements are lawful when they are or are necessary to achieve an otherwise legitimate business interest, such as a merger, joint venture or other cooperation.
However, it is up to the parties to the agreement to demonstrate (i) that their interest is justified, (ii) that the restrictive provision is incidental enough to achieve it and (iii) that the provision is narrowly adapted in time and space to be successful. The FTC`s recent complaints provide guidance on what the authorities consider to be acceptable competition and non-poach agreements in a transaction. While the FTC appears to focus primarily on competition in the product market in question, firms assessing mergers or acquisitions should continue to carefully consider the duration and scope of competition or non-call offers proposed in the transaction agreements.