Amicus Brief: Deslandes v. McDonald’s USA, LLC
Historically, no poach agreements are considered horizontal divisions, which courts evaluate under the per se rule. In the McDonald’s No Poach case, the district court showed the restraint in question was a market division among horizontal competitors, yet they evaluated claims under a full rule of reason analysis. Although COSAL agreed with the former, they said the latter analysis was incorrect. When evaluating claims, the district court misapplied the ancillary restraint doctrine. Courts use this doctrine when a restraint is “reasonably necessary” to augment competition, but the no poach agreement did not support a procompetitive endeavor and the reasons given to justify violations were unsound. The court erred once again when considering the presence of vertical agreements in the case. Vertical restraints of trade would be evaluated under rule of reason, rather than the per se rule. However, the presence of a vertical aspect does not change that the agreements were horizontal restraints. Due to the fact that the court analyzed the class certification motion by the wrong legal standards, COSAL explained that the order should be vacated. Written by Heidi Silton and Gary Smith, Jr.
