Overview
After numerous setbacks, the DOJ has finally gotten its first trial victory in its efforts to prosecute no-poach and wage-fixing agreements criminally when a federal jury convicted a home healthcare executive on federal wage-fixing charges in U.S. v. Lopez.1 Lopez was charged with conspiring to artificially cap the wages of home healthcare nurses in the Las Vegas area between March 2016 and May 2019 which affected the wages of hundreds of nurses who provide care to patients in their homes.2
This conviction is the culmination of a long-running battle launched in 2016, when the DOJ Antitrust Division and the Federal Trade Commission issued guidance warning that "naked" wage-fixing and no-poach agreements were per se violations of the antitrust laws and subject to criminal prosecution. On January 16, 2025, just four days before President Trump took office, the agencies released updated guidelines, which reaffirmed their commitment to criminally prosecuting wage-fixing agreements.
This focus has been bipartisan, spanning the Obama, Trump 1.0, Biden, and Trump 2.0 administrations. Indeed, after winning the conviction, Assistant Attorney General Abigail A. Slater of the DOJ's Antitrust Division confirmed it would remain a priority for the second Trump administration, stating "the Lopez verdict highlights what should be a clear message with antitrust crimes: the agreement is the crime. The Antitrust Division will zealously prosecute those who seek to unjustly profit off their employees. The nurses here deserved better, and, under President Trump's leadership, they will be protected."
The differences in the successful Lopez prosecution and DOJ's trial losses in all of its other no-poach/wage-fixing criminal trials to date are noteworthy. In prior cases, defense counsel appeared to have persuaded the jury that defendants' alleged illegal conspiracy never got past the discussion stage or created reasonable doubt about whether the parties had actually entered into a conspiracy. Here, the DOJ presented more solid evidence, including extensive text message exchanges between Lopez and his co-conspirators that showed that Lopez not only agreed to fix the wages paid to home healthcare workers but also implemented the agreement and monitored wage rates.3 And although it should not have impacted the jury's finding on the wage-fixing allegation, it is worth noting that Lopez was also convicted of five counts of wire fraud, charges that the DOJ added after learning that during its investigation into the wage-fixing conspiracy, Lopez sold his home healthcare staffing company for over $10 million while fraudulently concealing the government’s criminal investigation from the buyer. It appears that stronger facts and more compelling evidence in the form of text messages got the DOJ over the finish line here where it had fallen short in the past. The government now has a clearer understanding of what a jury needs to hear in order to convict a defendant in a wage-fixing case.
After all of the setbacks, this win is to some degree a vindication of the DOJ's long pursuit of criminal convictions. However, victory has not yet been sealed. Lopez has filed a motion for a mistrial, arguing that privileged communications were used during the closing arguments. In opposing that motion, DOJ argued that the defendant's arguments merely raise issues on which the court already ruled during the course of trial.4
Even if Lopez's motion for mistrial is denied, the DOJ may need to re-examine its approach to no-poach/wage-fixing prosecutions more broadly. Even where it sees evidence of an agreement, the DOJ must ask if the juice is worth the squeeze where the favorable conditions that likely contributed to Lopez’s guilty verdict – clear evidence of agreement and implementation, other fraud evidence, and a single-defendant trial – are not present. It also remains to be seen whether these prosecutorial efforts will begin to focus more on agreements involving larger companies, where these types of agreements can inflict more widespread harm on the labor force and criminal prosecution can be more impactful. Although we are aware of a limited number of investigations into larger companies for alleged no-poach/wage-fixing, the vast majority of the criminal prosecutions publicly reported have involved small companies.
Steptoe will continue to monitor the issue.
1 U.S. v. Lopez, No. 2:23-cr-00055 (D. Nev. 2025).
2 DOJ Press Release, Jury Convicts Home Health Agency Executive of Fixing Wages and Fraudulently Concealing Criminal Investigation (Apr. 14, 2025), available at https://www.justice.gov/opa/pr/jury-convicts-home-health-agency-executive-fixing-wages-and-fraudulently-concealing-criminal.
3 H. Konnath, Justice Dept. Lands 1st Wage-Fixing Jury Trial Conviction, Law 360 (April 14, 2025), available at https://www.law360.com/corporate/articles/2325350/justice-dept-lands-1st-wage-fixing-jury-trial-conviction.
4 Pl.'s Opp'n to Def.'s Third Mot. for Mistrial, 2, Apr. 18, 2025, ECF No. 664.
