Antitrust Law Daily Wrap Up, ANTITRUST—WDPA: Terminated Employee Not Permitted to Pursue Per Se Antitrust Claim Against Former Employers, (Oct 18, 2012)

By Jeffrey May, J.D.

An employee of a mining contractor (Gunther Nash, Inc.) who lost his job as a safety coordinator under contract for a mine operated by an energy company (Consol Energy, Inc.) purportedly as a result of a conspiracy failed to state a per se violation of the Sherman Act, the federal district court in Pittsburgh has decided (Molinari v. Consol Energy, Inc., October 16, 2012, Schwab, A.). The terminated employee's antitrust claim was dismissed.

The plaintiff alleged a conspiracy to suppress competition in the labor market. The claim was based on an agreement between the Consol Energy and one of the plaintiff's past employers (Select Medical Corporation), which was a direct competitor of Gunther Nash. The plaintiff had not executed a non-compete agreement, non-solicitation agreement, or any other agreement with a restrictive employment covenant with Select Medical. However, he contended, Consol Energy, Gunther Nash, and Select Medical restrained competition through the Select Medical/Consul Energy agreement precluding current and former Select Medical employees from employment with any rival company who would provide services to Consol Energy. Consol Energy and Select Medical also allegedly prevented the plaintiff from obtaining work at another contractor as a result of the agreement.

To determine whether a defendant’s conduct unreasonably restrains trade in violation of the antitrust laws, federal courts apply per se analysis or a more detailed, rule of reason analysis. Per se analysis is reserved for agreements that are so plainly anti-competitive that no elaborate study of the industry is needed to establish their illegality, the court explained.

The court declined to find that non-compete agreements of the type alleged were a per se violation of the Sherman Act under Third Circuit precedent (Eichorn v. AT&T Corp., 248 F.3d 131). Because the plaintiff only alleged a per se violation of Section 1 of the Sherman Act, which the court found inappropriate, the antitrust claim was dismissed as to all defendants. The court noted, however, that amendment of the complaint would not be futile, and dismissal was without prejudice.

The case is 12cv1085.

Matthew C. Cairone (The Cairone Law Firm PLLC) for Darrell Molinari. Patrick L. Abramowich (Fox Rothschild) for Gunther Nash, Inc.

Cases: Antitrust PennsylvaniaNews