DOJ Fishing Expedition Spotted Off Silicon Valley

When Assistant Attorney General Christine Varney said she plans to take a more aggressive approach to antitrust enforcement, she wasn’t kidding. Under her leadership the US Department of Justice has opened an investigation into the recruiting practices at Google (GOOG), Apple (AAPL), Yahoo (YHOO), and Genentech (DNA), among others. At issue, so called “no-poaching” agreements, pacts under which companies promise to not actively recruit employees from each other. Such covenants, if they do indeed exist, could be a violation of the Sherman Act of 1890, which prohibits agreements among competitors that result in restraint of trade. As Albert Foer, president of the American Antitrust Institute, explained to The Washington Post, “This could be collusive restraint on trade, which could have a serious impact on competition.”

Indeed it could. Good luck proving it, though. Finding hard evidence that some of the nation’s largest tech firms have secretly negotiated agreements not to hire away each other’s top talent isn’t going to be easy. I can’t imagine there’s a paper trail of collusive memos between Steve Jobs, Eric Schmidt, Carol Bartz and Arthur Levinson. Then again, there’s no telling what a DOJ fishing expedition might turn up.