Vol. 8 No. 2, Spring 2017; The Predatory Hiring Standard for Section 2 Violations of the Sherman Antitrust Act
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In antitrust claims of predatory hiring, plaintiffs allege that defendants have attempted to monopolize the market by eliminating their business or injuring their ability to compete by hiring away their employees. Universal Analytics, Inc., the principal case deciding this type of antitrust action, determined that unlawful predatory hiring may be established in two ways: (1) by showing the hiring was made with such predatory intent, or (2) by showing a “clear nonuse in fact.” After considering the criticism of the standards by legal scholars and examining key cases following Universal Analytics, Inc., this Note acknowledges the evolution of the application of the standard to predatory hiring claims and proposes a revision to the method to find predatory hiring. In doing so, it will reject the Universal Analytics, Inc. standard, and argue for its replacement by the new “bona fide intent to use” test. The “bona fide intent to use” test is derived from a compilation of what the courts have and must consider when determining whether the competitor has engaged in exclusionary conduct in the hiring of its competitor’s employee.