by Christopher A. Miller and Nicole Jefferson

Left to right: Christopher A. Miller and Nicole Jefferson (photos courtesy of Miller Shah LLP)

On April 14, 2025, the Department of Justice (DOJ) Antitrust Division (“The Division”) secured its first wage-fixing criminal conviction in United States v. Lopez, after a federal jury found that Eduardo “Eddie” Lopez violated Section 1 of the Sherman Antitrust Act (“Section 1”) by engaging in wire fraud and wage fixing. This decision signifies a shift in the DOJ’s approach to antitrust conduct in the labor market toward an expansion of criminal enforcement and deviates from the majority of antitrust litigation, which has largely been civilly prosecuted.  

Historically, the DOJ has had limited success in criminally prosecuting antitrust misconduct in the labor market, with several cases being dismissed at trial due to failure to meet evidentiary burden. The DOJ has had greater difficulty securing criminal convictions for no-poach agreements compared to wage-fixing agreements as a result of jury reluctance to pursue criminal prosecution. Since 2020, the Division has brought 30 defendants to trial for Section 1 violations, resulting in only one conviction. In January 2021, the Division filed its first criminal action against Surgical Care Affiliates, LLC (SCA) and SCAI Holdings, LLC for Section 1 violations, alleging that SCA and SCAI holdings conspired with competitors to not solicit each other’s senior level employees. The Division voluntarily dismissed the indictment without a clear legal reason for doing so, instead stating in the filing of the motion that the dismissal would allow for “the conservation of the Court’s time and resources.” The dismissal occurred amid a series of challenges with bringing no-poach and wage-fixing criminal cases. Recent no-poaching and wage-fixing cases brought by the Division have resulted in acquittals including United States v. Patel (2023), United States v. Jindal (2022), and United States v. DaVita, Inc. (2022). In Jindal, defendants filed a motion to dismiss, asserting that wage-fixing should not be prosecuted criminally because it lacked a clear legal precedent, but the Court denied the motion and held that wage-fixing is a “per se” violation of Section 1. Although the defendants were acquitted in Patel, Jindal, and DaVita, the Judge’s denial of their motions to dismiss indictments signifies the Court’s acknowledgement of the “per se” violation warranting criminal prosecution. 

In March 2023, Mr. Lopez was indicted with wire fraud and wage fixing, in violation of Section 1 of the Sherman Antitrust Act. Mr. Lopez was accused of capping wages of home healthcare nurses at his company, Community Health, in Las Vegas, Nevada between March 2016 and May 2019, resulting in significant lost wages. In September 2023, a federal grand jury returned a superseding indictment, charging Lopez with five additional counts of wire fraud, alleging that during the FBI Investigation, Lopez sold the home healthcare staffing company for over $10 million without disclosing the federal investigation to the buyer. The two-week jury trial ended in a unanimous verdict, convicting Lopez of one count of wage-fixing conspiracy and five counts of wire fraud. 

DOJ and FTC Release Updated Antitrust Guidance, Influencing Trend Toward Criminal Prosecutions

The decision comes after the DOJ and Federal Trade Commission (FTC), (together, “The Agencies”) released updated Antitrust Guidance in January 2025, replacing the 2016 Guidance. The goal of the new guidance was to reinforce their commitment to prosecuting antitrust labor market misconduct criminally. The 2016 Guidance explains that wage-fixing and no-poach agreements “eliminate competition in the same irredeemable way as agreements to fix product prices or allocate customers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct. Accordingly, the DOJ will criminally investigate allegations that employers have agreed among themselves on employee compensation or not to solicit or hire each others’ employees.” The 2016 guidance also explains that no-poach and wage fixing agreements are “per se illegal”, meaning that the agreement is illegal regardless of whether the larger collaboration is legitimate. The 2025 Guidance reiterates this point, stating “some types of agreements, including wage-fixing and no-poach agreements, may violate antitrust laws and can lead to criminal charges.” Their goal is to provide a stronger deterrence to businesses from engaging in wage-fixing by doubling down on these harsher penalties and to ensure compliance.  

Prior to the 2025 Guidelines update, the Division released a handbook for law enforcement in 2023 that includes an overview of federal antitrust crimes. It reflects a similar commitment to increased penalties, prison time, and criminal fines as the language in the 2016 Guidelines. The handbook explains that “because criminal antitrust conspiracies are inherently anticompetitive, the agreement to fix prices, rig bids, or allocate markets is the crime. In a case alleging a price-fixing, bid-rigging, or market allocation agreement, it is not a defense that the challenged conduct was necessary to avoid cutthroat competition, that it actually stimulated competition, or that it resulted in reasonable prices.” 

While antitrust violations have been addressed through civil litigation, a shift to criminal proceedings suggests more severe consequences. United States v. Lopez sets a precedent for wage-fixing criminal convictions. There is concern, however, among legal professionals that criminal prosecutions are unnecessary, and they believe civil antitrust proceedings are sufficient to address Section 1 violations. Other scholars claim that civil prosecution does not hold the same deterring effect of criminal prosecutions. It remains that criminal prosecutions for wage-fixing and no-poach agreements seem to be increasingly likely under the revised 2025 Antitrust Guidance.

Christopher A. Miller is an Associate and Nicole Jefferson is a Project Analyst at Miller Shah LLP. 

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