Week 8 Discussion Law homeworkRead Chapter 14 – Business Competition – Antitrust
Answer and discuss the following:
1. In today’s economy, there are powerful companies who in all appearances
control massive segments of different markets. Using the NEXIS-Uni Legal
Database or the FTC website below, research and provide one company and
case in the last five years that has been sued for anti-competitive
behavior. Explain why the activity is anti-competitive and whether it is a
horizontal restraint of trade or a vertical restraint of trade. Explain. (Please
do NOT write on Amazon, Google, Facebook, Qualcomm, Samsung, or
Apple – try to find a local company in your home state). Nexis-Uni
link: https://libdatab.strayer.edu/login?url=https://www.nexisuni.com
or
Cases and Proceedings | Federal Trade Commission (ftc.gov)
Be sure to respond to at least one of your classmates’ posts.
Please be sure answers are researched, informed, and substantiated by citing
sources used at the bottom of your discussion post. See the Strayer Writing
Standards link in BB for help following citation requirements.
Case for this week discussion
Giordano v. Saks Inc., 2023 U.S. Dist. LEXIS 17154, 2023 WL 1451534 (United States District Court
for the Eastern District of New YorkFebruary 1, 2023, Filed). https://advance-lexiscom.libdatab.strayer.edu/api/document?collection=cases&id=urn:contentItem:67FS-60J1-FBN1-22NH00000-00&context=1516831.
Professor example
FROM THE PROFESSOR…GOOD MORNING AND WELCOME TO WEEK 8!
Good morning and welcome to Week 8! Hope you are doing well. This quarter is
going by quick. Remember – the Week 7 assignment is now due on Wednesday by
noon. Please submit on time and be mindful of the late policy. Also, the
assignment papers for this class are important so if you are missing an assignment
– this should be your focus. Let me know if you have questions.
Anti-trust laws and competition in the marketplace are the focus of our discussion
and reading this week. It is important to remember that simply having a monopoly
is not a breach of US Antitrust laws. What is a violation of the law is using that
monopoly to stifle competition in the marketplace. And, not just stifling
competition, but to do so in a way that makes things worse for consumers. See
some Antitrust Law information below per the FTC and the links for some great
recent cases and information to write about.
Hope you are all doing well and hope you have a good Monday.
Guide to Antitrust Laws
• Free and open markets are the foundation of a vibrant economy. Aggressive
competition among sellers in an open marketplace gives consumers — both
individuals and businesses — the benefits of lower prices, higher quality
products and services, more choices, and greater innovation.
• The Federal Trade Commission’s (FTC) “competition” mission is to enforce
the rules of the competitive marketplace — the antitrust laws. These laws
promote vigorous competition and protect consumers from anticompetitive
mergers and business practices.
The FTC’s Bureau of Competition, working in tandem with the Bureau of
Economics, provides for antitrust laws for the benefit of consumers. The
Department of Justice helps to enforce the laws.
The Antitrust Laws
The Enforcers
Dealings with Competitors
Dealings in the Supply Chain
Single Firm Conduct
Price Discrimination: Robinson-Patman Violations
Mergers
US DEPARTMENT OF JUSTICE – ANTI-TRUST FILINGS:
https://www.justice.gov/atr/antitrust-case-filings
Cases and Proceedings: Advanced Search | Federal Trade Commission
(ftc.gov)
STRAYER LEGAL RESOURCE TOOL:
https://libdatab.strayer.edu/login?url=https://www.nexisuni.com
FTC – Enforcement – Enforcement | Federal Trade Commission (ftc.gov)
LORI BAGGOT INSTRUCTOR MANAGER
FROM THE PROFESSOR…CASE EXAMPLE ANTITRUST MICHIGAN
Overall Rating:
COLLAPSE
Good afternoon – hope everyone is having a good Monday. See my case example
below and if you are struggling to find a case in your home state, go to a
neighboring state. Let me know if you have questions or need anything and don’t
get stressed – just reach out to me and I will help find some cases for you. 😉
[Upper Peninsula Power Co. v. Vill. of L’Anse], 2020 Mich. App. LEXIS 7584
FACTS: Upper Peninsula Power Company (UPPCO), the plaintiff, provided
electric power to customers in Michigan’s Upper Peninsula, specifically the
Village of L’ Anse (defendants) who had annexed part of its industrial park from
the surrounding township.
UPPCO had the franchised rights from the early 1900’s and had recently
contracted for another 30 years in 1988. The Village attempted to change
companies and set up a meeting of townspeople to see who might be interested in
switching to “Village” electric, serviced by Penokie Electrict. It sent a letter
asking citizens to not mention the switch to the defendant company.
At the meeting, citizens were presented with information on how to save money on
electricity by switching. The Village continued to pursue the change for citizens
within the area at the protest of the defendant.
Before the defendant’s franchise expired, equipment of the defendant’s was
removed and replaced with Penokie energy’s equipment, the company some
citizens looked to change to (1).
Defendant filed suit alleging several causes of actions – specifically:
• Violation of Michigan Antitrust Reform Act – unfair
competition. The common law doctrine of unfair
competition is limited to acts of fraud, bad faith
representation, misappropriation, or product confusion that
leads to “unfair competition” in the marketplace (1).
• The ACT prohibits contracts, combinations and conspiracies
in restraint of trade or commerce; prohibits monopolies and
attempts to monopolize trade or commerce…(2)
TRIAL COURT: The plaintiff moved for summary judgment, meaning, “there
are no triable issues of act and no was the case would win a court of law” (3). In
other words, the facts speak for themselves and the plaintiff is entitled to relief
without having to go through trial.
WHY?
The plaintiff argued in a motion hearing to the judge that the Village could not
deny a franchise right to the company. The trial court provided that a franchise is a
contract between he parties and there is no “continuing duty” for the parties to
enter into a new franchise agreement once the existing contract had expired and,
even before it had expired. “Parties are free to contract willingly…and there is
no requirement to sign with the same company to provide continued services to
customers.
The plaintiff also argued that the communications between the Village
administration to the customers of the Village was in violation of anti-trust
law. “The defendant’s communication to citizens was false and deceiving and,
sought to “eliminate competition and impugned the reputation of the plaintiff
and cost it competitiveness” (1).
The trail court noted that deception was not present and no evidence presented that
communication was “false, deceiving” or eliminated competition, and it was not a
violation of Michigan antitrust law to “communicate another direction to provide
service to the citizens and customers of the Village.”
Appellate Court: Affirmed the decision of the trial court.
After the franchise agreement expired, the utility company had no legitimate claim
or entitlement to provide services and the Village no requirement to contract with
the plaintiff. Communications for competition for electrical services are the
reasons we have antitrust laws.
SOURCES:
(1). Upper Peninsula Power Co. v. Vill. of L’Anse, 2020 Mich. App. LEXIS 7584, 2020
WL 6683062 (Court of Appeals of Michigan November 12, 2020, Decided).
Retrieved on February 20, 2023 from https://advance-lexis-
com.libdatab.strayer.edu/api/document?collection=cases&id=urn:contentItem:618
R-2PT1-FJTD-G0W4-00000-00&context=1516831.
(2). Michigan Legislature, Section 274. Retrieved on October 17, 2022. Michigan
Anti-Trust Act of 1984. Retrieved on February 20, 2023
from http://www.legislature.mi.gov/(S(bdwcfkrov2bhi545h2b0fxre))/documents
/mcl/pdf/mcl-act-274-of-1984.pdf.
(3). Summary Judgment, definition. Legal Information Institute, Cornell Law School.
Retrieved on October 17, 2022. Retrieved on February 20, 2023 from Summary
Judgment | Wex | US Law | LII / Legal Information Institute (cornell.edu)
Reply Quote Email Author
21 hours ago
LORI BAGGOT INSTRUCTOR MANAGER
FROM THE PROFESSOR…CASE EXAMPLE TUESDAY
Overall Rating:
COLLAPSE
Good morning, Graduate Students. See another case example below for this
week. I thought this case was interesting since it focuses and clarifies the “intent”
element required for a violation of the Sherman Act and what it means. See the
requirements for violating the Sherman Act and let me know if you have any
questions. Hope you have a great day.
[Stern v. Department of Business and Professional Regulation] (2021)
FACTS:
The appellant appealed a fine and revocation of his real estate license. He was
convicted in federal court of violation of Section 1 of the Sherman Antitrust Act
when he engaged in “unreasonable restraint of trade” by suppressing competition
(1).
The licensing authority, the Department of Business and Professional Regulation,
(DBPR) then revoked his real estate license because the law calls for revocation
when: a sales associate is “convicted or found guilty of or entered a plea of nolo
contendere to . . . a crime in any jurisdiction which directly relates to the
activities of a licensed broker or sales associate or involves moral turpitude or
fraudulent or dishonest dealing.” § 475.25(1)(f), Fla. Stat. (2018).
The appellant was arguing that the Sherman Act violation does not constitute
a crime involving moral turpitude or fraudulent or dishonest dealing. Moral
turpitude is “an act or behavior that gravely violates the sentiment or accepted
standard of the community” (2). In other words, it is only “ethically
wrong.” Acts that are morally or ethically wrong are not necessarily
unlawful.
APPELLATE COURT: Reversed the decision of the DBPR.
Why?
A Sherman Act violation does not contain any element requiring the government to
prove fraudulent or dishonest dealing. In other words, to violate the Act the only
elements needed to prove are below and though someone can be also charged with
the tort of fraud or “dishonest dealings,” – neither of these were present in the
appellant’s case. His actions amounted to an economic infraction, not a
crime. The DBPR did not then have the authority to revoke his sale’s license or
impose a fine since it’s action called for the conviction of a crime.
To prove a violation of the Sherman Act, the government must prove:
(1) that there existed a conspiracy as charged in the
indictment, that the conspiracy was knowingly formed and
that the defendants knowingly participated in the
conspiracy.
(2) that the conspiracy unreasonably restrained trade; and
(3) that the restraint was on interstate trade and commerce
(1).
SOURCES:
1. Stern v. Dep’t of Bus. & Prof’l Regulation, 319 So. 3d 659,
2021 Fla. App. LEXIS 6770, 46 Fla. L. Weekly D 1079, 2021
WL 1899498 (Court of Appeal of Florida, Fourth District
May 12, 2021, Decided). Retrieved on February 21, 2023
from https://advance-lexiscom.libdatab.strayer.edu/api/document?collection=cases
&id=urn:contentItem:62NB-74K1-DXHD-G2BP-0000000&context=1516831.
2. Moral Turpitude, Merriam Legal Dictionary, Retrieved on
Retrieved on February 21, 2023 from Moral turpitude
Definition & Meaning | Merriam-Webster Legal
Date and Time: Friday, February 24, 2023 12:36:00PM EST
Job Number: 191148526
Document (1)
1. Giordano v. Saks Inc., 2023 U.S. Dist. LEXIS 17154
Client/Matter: -NoneSearch Terms: last five years that has been sued for anti-competitive behavior New York..
Search Type: Natural Language
Narrowed by:
Content Type
Cases
Narrowed by
Timeline: Previous 5 Years (After February 24, 2018)
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2023 LexisNexis
No Shepard’s Signal™
As of: February 24, 2023 5:37 PM Z
Giordano v. Saks Inc.
United States District Court for the Eastern District of New York
January 31, 2023, Decided; February 1, 2023, Filed
20-CV-833 (MKB)
Reporter
2023 U.S. Dist. LEXIS 17154 *; 2023 WL 1451534
SUSAN GIORDANO, ANGELENE HAYES, YINGLIANG WANG, and ANJA BEACHUM, on behalf of
themselves and others similarly situated, Plaintiffs, v.
SAKS INCORPORATED, SAKS & COMPANY LLC,
SAKS FIFTH AVENUE LLC, LOUIS VUITTON USA
LLC, LORO PIANA & C. INC., GUCCI AMERICA, INC.,
PRADA USA CORP., and BRUNELLO CUCCINELLI
USA, INC., Defendants.
Core Terms
Brand, no-hire, employees, luxury, retail,
anticompetitive, hire, rule of reason, limitations period,
antitrust, cases, allegations, overt act, courts, adverse
effect, Plaintiffs’, relevant market, market power,
amended complaint, store manager, conspiracy, effects,
prices, statute of limitations, procompetitive,
Defendants’, competitors, geographic, training, naked
Melamed Huot, Faruqi & Faruqi LLP, New York, NY;
Michaela Wallin, PRO HAC VICE, Berger Montague PC,
Philadelphia, PA.
For Saks Incorporated, Saks & Company LLC, Saks
Fifth Avenue LLC, Defendants: David J. Lender, Eric
Shaun Hochstadt, LEAD ATTORNEYS, Weil, Gotshal &
Manges, LLP, [*2] New York, NY.
For Louis Vuitton USA Inc., Loro Piana & C. Inc.,
Defendants: Joshua Wendell Mahoney, Maile Solis,
Nicholas Laird, PRO HAC VICE, Owen Smith, Robert E.
Shapiro, Barack Ferrazzano Kirschbaum & Nagelberg,
Chicago, IL.
For Gucci America, Inc., Defendant: Corey William
Roush, Oluwaremilekun Ojurongbe, LEAD
ATTORNEYS, PRO HAC VICE, Akin Gump Strauss
Hauer & Feld LLP, Litigation, Washington, DC; Nathan
J. Oleson, LEAD ATTORNEY, PRO HAC VICE, Akin
Gump Strauss Hauer & Feld LLP, Washington, DC.
Counsel: [*1] For Susan Giordano, Angelene Hayes,
Ying-Liang Wang, Plaintiffs: Alex J. Hartzband, Camilo
Malcolm X Burr Di Mauro, Faruqi & Faruqi, LLP, New
York, NY; Daniel John Walker, Berger Montague PC,
Washington, DC; Eric Cramer, Patrick F. Madden, PRO
HAC VICE, Berger & Montague, Philadelphia, PA;
Joseph R. Saveri, PRO HAC VICE, Joseph Saveri Law
Firm, LLP, San Francisco, CA; Kevin Rayhill, Joseph
Saveri Law Firm, Inc., San Francisco, CA; Michaela
Wallin, PRO HAC VICE, Berger Montague PC,
Philadelphia, PA; Steven N. Williams, Joseph Saveri
Law Firm, San Francisco, CA; Innessa Melamed Huot,
Faruqi & Faruqi LLP, New York, NY.
For Prada USA Corp., Defendant: Mark H Hamer, LEAD
ATTORNEY, PRO HAC VICE, Baker McKenzie,
Washington, DC; Kristen E Lloyd, PRO HAC VICE,
Baker McKenzie LLP, Washington, DC.
For Anja Beachum, on behalf of themselves and others
similarly situated, Plaintiff: Camilo Malcolm X Burr Di
Mauro, Faruqi & Faruqi, LLP, New York, NY; Daniel
John Walker, Berger Montague PC, Washington, DC;
Eric Cramer, Patrick F. Madden, PRO HAC VICE,
Berger & Montague, Philadelphia, PA; Innessa
Opinion
For Brunello Cucinelli USA, Inc., Defendant: Richard B.
Brosnick, LEAD ATTORNEY, Cassidy Mara, Jeffrey A.
Kimmel, Akerman LLP, New York, NY.
Judges: MARGO K. BRODIE, United States District
Judge.
Opinion by: MARGO K. BRODIE
MEMORANDUM & ORDER
Page 3 of 23
Giordano v. Saks Inc.
MARGO K. BRODIE, United States District Judge:
Plaintiffs Susan Giordano, Angelene Hayes, Ying-Liang
Wang, and Anja Beachum commenced the abovecaptioned putative class action on February 14, 2020 and
filed an Amended Complaint on May 1, 2020, against
Saks Incorporated, Saks & Company LLC, and Saks Fifth
Avenue [*3] LLC (collectively, “Saks”), and against Louis
Vuitton USA Inc. (“Louis Vuitton”), Loro Piana & C. Inc.
(“Loro Piana”), Gucci America, Inc. (“Gucci”), Prada USA
Corp. (“Prada”), and Brunello Cucinelli USA, Inc.
(“Brunello
Cucinelli”)
(collectively,
the
“Brand
Defendants”), alleging violations of the Sherman Act, 15
U.S.C. § 1.1 (Compl., Docket Entry No. 1; Am. Compl.,
Docket Entry No. 44.) In the Amended Complaint,
Plaintiffs allege that Saks and the Brand Defendants
have agreed not to compete for employees in the luxury
retail industry by not hiring luxury retail employees
(“LREs”) who have worked at Saks within six months of
such employment unless managers of both companies
agree to an exception, resulting in depressed
compensation for luxury retail employees and preventing
Plaintiffs from changing jobs, advancing their careers,
and seeking better compensation in the industry. (Am.
Compl. ¶¶ 1-3.)
Defendants move to dismiss the Amended Complaint as
time-barred and meritless, and Plaintiffs oppose the
motion.2 For the reasons set forth below, the Court grants
Defendants’ motion to dismiss and grants Beachum leave
to file a second amended complaint within thirty days
from the date of this Memorandum [*4] and Order.
I. Background
Plaintiffs worked as skilled luxury retail employees at
Saks.3 (Am. Compl. ¶¶ 8-11.) They received “extensive
training on service, selling, and product-knowledge” and
helped to maintain the image of the brand by creating “an
atmosphere of exclusivity and opulence.” (Id. ¶¶ 1, 3234.) Plaintiffs allege that Saks and the Brand Defendants
have entered into express agreements to suppress luxury
retail employees’ compensation, (id. ¶¶ 2, 94), and further
1 Plaintiffs
named Fendi North America, Inc. (“Fendi”) in the
Complaint but not in the Amended Complaint. (Compl. 1, ¶ 67;
see generally Am. Compl.)
2 (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), Docket Entry No. 95;
Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), Docket
Entry No. 95-1; Pls.’ Mem. in Opp’n to Defs.’ Mot. (“Pls.’ Mem.”),
Docket Entry No. 96.)
contend that these agreements artificially suppress their
pay and decrease worker mobility in violation of Section
1 of the Sherman Act, (id. ¶ 3).
a. Defendants’ operations
Luxury brands portray themselves as distinct by “cast[ing]
themselves as shaped by cultural and historical heritage,
and market[ing] their luxury brands as rooted in longerterm traditions rather than constantly-changing fashions.”
(Id. ¶¶ 22-24.) Defendants use “the customer service
their sales staff supplies” to help make that impression.
(Id. ¶¶ 27-28.) Luxury retail employees have “substantial
skill and training” and are essential to maintaining the
“aura of authenticity” necessary to luxury brands’ identity.
(Id. ¶¶ 27-30.) They are “knowledgeable about the
particular [*5] products each Defendant manufactures
and/or sells, as well as current trends,” (id. ¶ 34), and they
form personal relationships with repeat customers, (id. ¶
35). Because luxury retail employees are essential to
luxury brands, Defendants make significant efforts to
provide them with specialized training. (Id. ¶ 32.) For
example, Prada teaches employees about the brand and
trains them in salesmanship at its “Prada Academy,” and
Saks “has robust employee training and emphasizes
customer relationships with its employees.” (Id. ¶¶ 36,
38.)
Defendants compete with each other for luxury retail
employees and are “the dominant employers” of such
employees. (Id. ¶¶ 39-51.) Saks “is part of a retail
conglomerate that employs approximately 40,000
employees worldwide”; LVMH (the parent company of
Louis Vuitton and Loro Piana) “has more than 32,000
employees in the United States, including thousands of
Luxury Retail Employees who sell luxury retail goods to
consumers at Louis Vuitton and Loro Piana”; Gucci
“employs more than 14,000 employees worldwide,”
including hundreds of luxury retail employees in the
United States; Prada employs “more than 13,000
employees worldwide,” including hundreds of [*6] luxury
retail employees;4 and Brunello Cucinelli “employs more
than 1,800 employees worldwide,” including hundreds of
3 The Court assumes the truth of the factual allegations in the
Amended Complaint for the purposes of this Memorandum and
Order.
4 Plaintiffs allege that Prada operates about fifty-two stores in
the United States but do not specify how many of Prada’s luxury
retail employees work in the United States. (Am. Compl. ¶¶ 4748.)
Page 4 of 23
Giordano v. Saks Inc.
luxury retail employees in the United States. (Id. ¶¶ 4249.)
In a properly functioning market, Defendants would
compete for luxury retail employees. (Id. ¶ 53.)
Defendants “would save on training costs and receive the
immediate benefit of a well-trained, motivated
salesperson who knows how to cultivate relationships
with customers and enhance the Defendant’s brand.”
(Id.) Luxury retail employees would also benefit from the
ability to move to luxury retailers with a more attractive
compensation package. (Id. ¶¶ 52-64.) In addition,
Defendants would be motivated to improve Plaintiffs’
compensation and benefits if employees could freely
leave for desirable positions. (Id. ¶¶ 65-76.) Because
Defendants “carefully monitor and manage their
respective internal compensation levels” to “[m]aintain[]
approximate compensation parity” among employees
with the same job titles and to maintain fixed
compensation relationships between job titles, (id. ¶ 7779), Defendants would hire skilled employees from their
competitors with the effect of increasing overall
compensation. (Id. ¶ 80.) [*7]
b. Allegations of no-hire agreements
The Brand Defendants maintain “no-hire” agreements
with Saks, in which they agree not to cold-call Saks
employees and offer to hire them. (Id. ¶¶ 80-85.) Plaintiffs
contend that these no-hire agreements, which “have
been in place since at least 2014,” are “an unreasonable
restraint of trade,” and benefit Defendants at the expense
of luxury retail employees. (Id. ¶¶ 86-91.) These
agreements only permit a Brand Defendant to hire a
current or former Saks employee if (1) managers from
both companies agree, or (2) the employee left Saks at
least six months prior. (Id. ¶¶ 89-92.)
c. Plaintiffs’ employment and attempts to work for
the Brand Defendants
Giordano worked for Saks from November of 2012 until
March of 2019, Hayes from August of 2013 until July 27,
2016, Wang from October of 2014 until April of 2016, and
Beachum from February of 2016 until September of 2016
and from the summer of 2018 until December of 2019.
(Id. ¶¶ 8-11.)
i. Giordano
In 2012, Saks hired Giordano as a sales associate in one
of its New York stores. (Id. ¶ 155.) Giordano spent the
first eighteen months of her employment working at the
Loro Piana boutique within that store, and then
sought [*8] employment at the standalone Loro Piana
boutique on Madison Avenue, which paid “considerably
higher wages.” (Id. ¶¶ 156-158.) The manager at the Loro
Piana boutique “noted that [Giordano] would surely be an
asset” to the store because of her knowledge of the brand
but told Giordano that she could not hire her “because
she was a current employee of Saks.” (Id. ¶ 160.) The
manager added that “Loro Piana is never going to take
you, and Saks is never going to let you go.” (Id. ¶ 161.)
Giordano continued to work at Saks, Saks promoted her,
and she gained experience with additional luxury brands
such as Brunello Cucinelli but remained unhappy with her
compensation. (Id. ¶¶ 162-164.) She applied online for an
open sales position at the Brunello Cucinelli boutique “in
or around 2016,” and when she did not receive a
response, met with a store manager “who agreed that
[she] was indeed qualified” and accepted her resume. (Id.
¶¶ 165-169.) Giordano “never heard back from the
manager or from Brunello Cuccinelli.” (Id. ¶ 170.)
Between 2014 and 2017, Giordano “sent dozens of
resumes and job applications to the other Brand
Defendants and numerous other unnamed coconspirators,” but was unable “to secure [*9] even an
interview with the Brand Defendants.” (Id. ¶¶ 170-171.)
Giordano sought the help of two recruitment agencies
that specialized in the luxury retail industry, and they
explained that she was qualified but “they would be
unable to place her with any brand carried by Saks”
unless she resigned her position at Saks and then waited
several months. (Id. ¶¶ 173-183.) Giordano eventually
obtained a position at a smaller luxury retailer not carried
by Saks, but her compensation and her opportunities for
upward mobility were affected by her inability to obtain
employment at the Brand Defendants. (Id. ¶¶ 184-186.)
ii. Hayes
On August 3, 2013, Saks hired Hayes to work at its
Beachwood, Ohio store, where she earned seventeen
dollars an hour. (Id. ¶¶ 106, 109.) She had previously
held positions at Gucci and Louis Vuitton and knew that
she was qualified to earn a higher salary as well as
commission. (Id. ¶¶ 108-110). Hayes also believed that
she was qualified for a promotion to management at
either of those companies. (Id. ¶¶ 111-112.) “Shortly
after” Hayes was hired by Saks, she applied to work at
Gucci. (Id. ¶ 113.) A store manager at Gucci told her that
the company was “not allowed to hire [*10] Saks
Page 5 of 23
Giordano v. Saks Inc.
employees.” (Id. ¶ 115.) In December of 2014, Hayes
asked the director of human resources at Saks whether
she was free to seek a position with Louis Vuitton or other
Brand Defendants. (Id. ¶¶ 116-117.) The director told
Hayes she could not and explained that under no-hire
agreements between Saks and the Brand Defendants,
Hayes “must first resign from Saks and wait six months
before the Brand Defendants would be allowed to hire
[her],” unless Saks and a Brand Defendant mutually
agreed to allow her to be hired earlier. (Id. ¶¶ 118-120.)
On June 24, 2015, Hayes applied by email to work at
Louis Vuitton, and a store manager told her via email that
“we have an agreement with Saks that we cannot take
their employees and have to wait [six] months before
hiring.” (Id. ¶¶ 121-123; Emails between Store Manager
Hope Frate and Hayes 2-3, annexed to Am. Compl. as
Ex. A, Docket Entry No. 44-1.) Hayes spoke to a Prada
store manager “[s]hortly thereafter,” who also explained
that she “could not be considered for employment until
she [left] Saks and wait[ed] for a period of six . . . months”
and confirmed that all the Brand Defendants followed this
policy. (Am. Compl. ¶¶ 126-127.)
Hayes continued [*11] to work at Saks, (id. ¶ 128), and
in or around November of 2015, learned that Louis
Vuitton had hired a former coworker less than six months
after that coworker left Saks. (Id. ¶¶ 128-129.) Hayes filed
a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging failure to hire on the basis
of race and sex. (Id. ¶ 130; Letter dated July 12, 2016 in
response to EEOC Charge, at 4 (“Louis Vuitton Letter”),
annexed to Am. Compl. as Ex. B, Docket Entry No. 442.)5 Louis Vuitton submitted a statement to the EEOC
confirming the existence of the no-hire agreement, and
stating that the other employee in question “followed the
proper protocol” by seeking managers’ approval before
applying to work at Louis Vuitton. (Louis Vuitton Letter 3;
see also Am. Compl. ¶¶ 132-133.) Hayes remained in her
role at Saks and continued to earn seventeen dollars an
hour until on or around July 27, 2016, when her
employment “was terminated.” (Am. Compl. ¶¶ 134-137.)
After her termination, Hayes could not find employment
in the luxury retail sector and, due to the no-hire
agreements, was forced to accept an entry-level position
that did not use her skills. (Id. ¶¶ 138-139.)
iii. Wang
5 Hayes did not attach the EEOC charge to the Complaint.
In October of [*12] 2014, Saks hired Wang to work at its
Beachwood, Ohio store, where she proved to be a top
salesperson in the shoe department. (Id. ¶¶ 140-142.)
Wang had multiple conversations with a Gucci store
manager who wanted to recruit her. (Id. ¶ 143.) In
January of 2015, the store manager told Wang that she
could not “technically recruit” Wang, a Saks employee,
but believed that she was a “perfect fit.” (Id. ¶¶ 144-145.)
The store manager informed Wang “that she would have
to wait a ‘six-month cooling off period’ after leaving Saks
in order to be hired by Gucci.” (Id. ¶ 146.) In February of
2015, Wang spoke with a Prada store manager who told
her “Prada has an agreement with Saks not to recruit
Saks [l]uxury [r]etail [e]mployees,” and nobody with hiring
authority at Prada could “initiate contact” with Wang. (Id.
¶¶ 148-149.) Because the no-hire agreements prohibited
interested Brand Defendants from hiring Wang, her
salary “stagnated” for the remainder of her time at Saks.
(Id. ¶¶ 150-154.)
iv. Beachum
Saks hired Beachum to work at its Troy, Michigan stores
during two periods: from February to September of 2016,
and from the summer of 2018 to December of 2019. (Id.
¶ 187.) While employed at Saks, [*13] Beachum sold
brands including Chanel and Prada and developed some
knowledge of other brands sold at the store. (Id. ¶ 189.)
Beachum wanted to seek employment at Louis Vuitton,
but it was “common knowledge” at Saks that the Louis
Vuitton concession within the Troy, Michigan Saks would
not hire Saks employees, therefore she “did not even
bother” to apply to the concession. (Id. ¶¶ 188, 190.)
However, she left her resume at a Louis Vuitton boutique
“in the same Troy, Michigan mall in which her Saks store
was located” and did not hear back. (Id. ¶ 190.) Beachum
left the luxury retail field “[b]ecause she was unable to
obtain other employment as a [l]uxury [r]etail [e]mployee.”
(Id. ¶ 191.)
d. Plaintiffs’ antitrust allegations
Plaintiffs allege that the no-hire agreements between
Saks and the Brand Defendants decreased their
compensation and mobility and violate Section 1 of the
Sherman Act whether viewed as per se illegal horizontal
restraints on competition, analyzed under the “quick look”
test, or examined under the full rule of reason analysis. 6
6 Plaintiffs allege that they represent a class defined as:
Page 6 of 23
Giordano v. Saks Inc.
(Id. ¶¶ 192-194, 208-220.) Plaintiffs seek damages, an
injunction preventing Defendants from enforcing the nohire agreements or similar agreements, equitable relief,
and [*14] costs. (Id. at 36-37.)
II. Discussion
a. Standard of review
In reviewing a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, a court must
construe the complaint liberally, “accepting all factual
allegations therein as true and drawing all reasonable
inferences in the plaintiffs’ favor.” Sacerdote v. N. Y.
Univ., 9 F.4th 95, 106-07 (2d Cir. 2021) (citation omitted);
Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145
(2d Cir. 2020) (quoting Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir. 2002)). A complaint must
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007);
Bacon v. Phelps, 961 F.3d 533, 540 (2d Cir. 2020)
(quoting Bell Atl. Corp., 550 U.S. at 570). A claim is
plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v.
Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173
L. Ed. 2d 868 (2009)); Cavello Bay Reinsurance Ltd. v.
Shubin Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting
Iqbal, 556 U.S. at 678). Although all allegations
contained [*15] in the complaint are assumed to be true,
this tenet is “inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678; Vaughn, 957 F.3d at 145 (same).
b. Claims by Giordano, Hayes, and Wang are barred
by the statute of limitations
Defendants argue that claims by Giordano, Hayes, and
Wang are barred by the Sherman Act’s four-year statute
of limitations. (Defs.’ Mem. in Supp. 9-19 (“Defs.’ Mem.”)).
They argue that the “continuing violation” exception to the
All persons in the United States employed by at least one
of Defendants at any time from September 30, 2015 until
the effects of Defendants’ conduct ceases (the “Class
Period”) who: (i) work in any of Defendants’ respective
stores and/or boutiques; and (ii) sell and/or manage the
sale of luxury goods to consumers. Excluded from the
Class are each of Defendants’ officers and directors, as
statute of limitations does not apply since Plaintiffs fail to
allege an “overt act” within the limitations period. (Defs.’
Reply in Supp. 4-5 (“Defs.’ Reply”)).
Plaintiffs argue that the “continuing violation” doctrine
applies to their claims. (Pls.’ Mem. in Opp’n 40-50 (“Pls.’
Mem.”)). They contend that Defendants engaged in
ongoing misconduct beginning in at least 2014 and that
each time Defendants (1) paid Plaintiffs “subcompetitive
compensation” or (2) “enforce[ed] the anticompetitive nohire agreements by refusing to hire [Saks employees],”
Defendants “committed overt acts that injured Plaintiffs”
and that restart the limitations clock. (Id. 41.) Plaintiffs
maintain that since Defendants took both these actions
within four years of the date they filed their Complaint,
their claims are [*16] timely.
“The basic rule is that damages are recoverable under
the federal antitrust acts only if suit therefor is
commenced within four years after the cause of action
accrued.” Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321, 338, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971)
(internal quotation marks omitted). An antitrust cause of
action accrues, and the limitations period begins to run,
“when a defendant commits an act that causes injury to
the plaintiff.” In re Ciprofloxacin Hydrochloride Antitrust
Litig., 261 F. Supp. 2d 188, 218 (E.D.N.Y. 2003); see also
Zenith, 401 U.S. at 338 (“Generally, a cause of action
accrues and the statute begins to run when a defendant
commits an act that injures a plaintiff’s business.”).
“Because a statute of limitations is an affirmative
defense, [a defendant] bears the burden of proof to show
. . . the claims [are barred].” N.Y. State Elec. & Gas Corp.
v. FirstEnergy Corp., 766 F.3d 212, 230 (2d Cir. 2014)
(citations omitted). Once a defendant is able to make out
a prima facie case that the claims are untimely, “[t]he
burden then shifts to the plaintiff to establish that the
limitations period should be tolled.” Overall v. Estate of
Klotz, 52 F.3d 398, 403 (2d Cir. 1995) (citations omitted);
see also Szymanski v. Local 3, IBEW, 577 F. App’x 52,
53 (2d Cir. 2014) (“Because the statute of limitations is
an affirmative defense, the defendant bears the burden
of establishing by prima facie proof that the limitations
period has expired since the plaintiff’s claims accrued.”
(citation omitted)); Cesari S.R.L. v. Peju Province Winery
well as employees in roles where they purchase luxury
retail goods on behalf of any Defendant to display and sell
in the Defendant’s stores and/or on its website(s).
(Id. ¶ 197.) They contend that class certification is warranted
because the class is numerous, their claims are typical, and
they can ably litigate questions of law common to the class. (Id.
¶¶ 198-207.)
Page 7 of 23
Giordano v. Saks Inc.
L.P., No. 17-CV-873, 2022 U.S. Dist. LEXIS 138100,
2022 WL 3082960, at *22 (S.D.N.Y. Aug. 3, 2022)
(citation omitted) (same).
In the antitrust context, a “continuing [*17] violation” is
one that “inflict[s] continuing and accumulating harm” on
a plaintiff. Hanover Shoe v. United Shoe Mach. Corp.,
392 U.S. 481, 502 n.15, 88 S. Ct. 2224, 20 L. Ed. 2d 1231
(1968); see also DXS, Inc. v. Siemens Med. Sys., 100
F.3d 462, 467 (6th Cir. 1996) (“A continuing antitrust
violation is one in which the plaintiff’s interests are
repeatedly invaded.” (citation omitted)). In such a case,
“each overt act that is part of the violation and that injures
the plaintiff . . . starts the statutory period running again,
regardless of the plaintiff’s knowledge of the alleged
illegality at much earlier times.” Klehr v. A.O. Smith Corp.,
521 U.S. 179, 189, 117 S. Ct. 1984, 138 L. Ed. 2d 373
(1997) (quoting P. Areeda & H. Hovenkamp, Antitrust
Law: An Analysis of Antitrust Principles and Their
Application ¶ 338b); see also Zenith, 401 U.S. at 338 (“In
the context of a continuing conspiracy to violate the
antitrust laws . . . [a “continuing violation”] has usually
been understood to mean that each time a plaintiff is
injured by an act of the defendants a cause of action
accrues to him to recover the damages caused by that
act and that, as to those damages, the statute of
limitations runs from the commission of the act.”). In the
Second Circuit, “[a]n overt act that restarts the statute of
limitations is characterized by two elements: (1) it must
be a new and independent act that is not merely a
reaffirmation of a previous act; and (2) it must inflict new
and [*18] accumulating injury on the plaintiff.” US
Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43, 68
7 Plaintiffs contend that Defendants paid them “subcompetitive
compensation . . . and enforce[ed] the anticompetitive no-hire
agreements . . . on a continuous basis up to and throughout the
statutory period.” (Pls.’ Mem. 41.) Giordano, Hayes, and Wang
each allege that they suffered limited job mobility prior to the
limitations period. (See Am. Compl. ¶¶ 106, 113-14 (Hayes
began working at Saks “[o]n or around August 3, 2013” and
shortly thereafter “contacted a Gucci Store Manager to seek
employment at Gucci,” but was informed that she could not be
considered for a position “because she was an employee of
Saks”); id. ¶¶ 140-46 (Wang was told by a Gucci store manager
in “approximately January 2015” that she “could not ‘technically
recruit’ Ms. Wang” until Wang had left Saks for six months); id.
¶¶ 156-61 (Girodano was informed by a Loro Piana store
manager “[i]n approximately 2013” that she “could not be
considered for employment at Loro Piana because she was a
current employee of Saks”). Plaintiffs allege that this limitation
on their mobility allowed Saks to retain them as employees at
artificially-suppressed wages. See, e.g., Am. Compl. ¶ 196
(2d Cir. 2019) (quoting DXS, Inc., 100 F.3d at 467); see
also O.E.M. Glass Network, Inc. v. Mygrant Glass Co.,
436 F. Supp. 3d 576, 589 (E.D.N.Y. 2020) (citations
omitted) (same).
i. Plaintiffs Giordano, Hayes, and Wang’s claims are
prima facie untimely
Plaintiffs Giordano, Hayes, and Wang filed their
Complaint on February 14, 2020. (Compl.) They contend
that the conspiracy involving Defendants commenced in
at least 2014, (Pls.’ Mem. 40; Am. Compl. ¶ 93), and
injured them in two ways: (1) it impaired their mobility by
preventing them from working for a Brand Defendant
within six months of termination from Saks and (2) it
allowed Saks to pay them “artificially suppressed
compensation.” (Pls.’ Mem. 40.) Plaintiffs argue that they
were injured “on a continuous basis up to and throughout
the statutory period, (id. at 41), but they concede that they
were first injured by Defendants’ actions at or around the
time they began their employment with Saks. 7 Since
Giordano began working at Saks in November of 2012,
Hayes in August of 2013, and Wang in October of 2014,
(Am. Compl. ¶¶ 8-11), each first suffered injury under the
conspiracy prior to the limitations period. Thus, the
Sherman Act’s four-year statute of limitations bars them
from raising claims that accrued before February
14, [*19] 2016, unless the continuing violation doctrine
applies to Plaintiffs’ claims.
Defendants appear not to challenge that the Amended
Complaint alleges a continuing injury to Plaintiffs’
interests,8 and accordingly the Court addresses only
(“[T]he No-Hire Agreements . . . prevent[ed] Plaintiffs . . . from
obtaining employment and earning compensation in a
competitive market, reduce[ed] compensation, and prevent[ed]
or limit[ed] employment opportunities …….. “).
8 Defendants do not appear to challenge that, if taken as true,
the Amended Complaint alleges a “continuing and
accumulating harm” suffered by Plaintiffs. Hanover Shoe, 392
U.S. at 502 n.15. First, Defendants argue that courts in the
Second Circuit apply the continuing violation exception only in
“compelling circumstances,” (Defs.’ Mem. 11), and contend that
(1) Plaintiffs’ actual knowledge of the no-hire agreements, (2)
finality considerations, and (3) Congress’s intention that suits
under the Clayton Act be brought promptly, all counsel against
the Court applying the continuing violation exception, (id. at 1013.) Second, Defendants argue that Plaintiffs fail to sufficiently
allege the “overt act” necessary to invoke the continuing
violation exception. (Id. at 13-19; Defs.’ Reply 3-8.) Defendants
also argue that the alleged payment of reduced wages within
the limitations period are “mere effects” of wrongful acts that
Page 8 of 23
Giordano v. Saks Inc.
whether Plaintiffs have committed an “overt act” within
the limitations period.
ii. Plaintiffs Giordano, Hayes, and Wang fail to allege
the “overt act” necessary to satisfy the “continuing
violation” exception
Prior to US Airways, courts in this Circuit took different
approaches “as to whether and when the performance of
a contract constitutes an overt act.” US Airways, 938 F.3d
at 68 (citation omitted); see also Rite Aid Corp. v. Am.
Express Travel Related Servs. Co., Inc., 708 F. Supp. 2d
257, 269 (E.D.N.Y. 2010) (“Performance during the
limitations period pursuant to an illegal prelimitations
contract can constitute an overt act if resulting damages
were speculative [at the time of contracting].”); In re
Ciprofloxacin, 261 F. Supp. 2d at 229 (“[T]he
performance of an allegedly anticompetitive, pre-existing
contract is not a new predicate act.”).9
In US Airways, the Second Circuit resolved these
differences, holding that “performance of a contract [is] a
manifestation of the . . . the decision to enter the contract,
rather [*20] than an independent overt act of its own.”
938 F.3d at 69. US Airways involved a Section 1 claim
arising from two substantially similar contracts between
US Airways and Sabre Holdings Corp., a company that
offered a platform used by travel agents to book flights.
Id. at 49-51. US Airways subsequently challenged as
anticompetitive several of the provisions in these
contracts, which it had entered in 2006 and 2011. Id. at
51-52. At trial, the jury found for US Airways and awarded
the company treble damages. Id. at 53. On appeal by
both parties, among other things, US Airways challenged
the district court’s decision not to award damages flowing
from the 2006 contract on the grounds that it fell outside
the Sherman Act’s four-year statute of limitations. Id. at
occurred pre-limitations. (Defs.’ Mem. 13-15.) Defendants thus
appear to concede that the alleged conduct “repeatedly
invaded,” DXS, 100 F.3d at 467, Plaintiffs’ interest on a
continual basis both before and during the limitations period.
(Defs.’ Mem. 13-15.)
9 Various
Courts of Appeals have also taken different
approaches in determining what is an overt act that restarts the
statute of limitations. In Samsung Elecs. Co., Ltd. v. Panasonic
Corp., the Ninth Circuit stated that “[w]e have repeatedly held
that acts taken to enforce a contract were overt acts that
restarted the statute of limitations.” 747 F.3d 1199, 1204 (9th
Cir. 2014). In contrast, in Z Technologies Corp. v. Lubrizol
Corp., which involved a merger challenge, the Sixth Circuit
declined to find that enforcement of a non-compete clause in a
67. US Airways argued that the district court incorrectly
applied the “continuing violation” doctrine because,
although US Airways had indeed entered into the 2006
contract prior to the statute of limitations, it had suffered
injury flowing from that contract throughout the limitations
period. Id. Relying on Hanover Shoe, 392 U.S. 481, US
Airways argued that “an antitrust plaintiff may recover
damages suffered during the limitations period as the
result of an anticompetitive contract, regardless [of] when
that contract first took effect, [*21] because conduct or
forbearance from conduct pursuant to the terms of an
anticompetitive contract is itself a continuing violation.” Id.
The Second Circuit disagreed. It found no authority “to
support the proposition that each act taken in
performance of a contract necessarily constitutes an
overt act for purposes of the continuing-violation rule.” Id.
at 68. The Court acknowledged the split among the
district courts and among other Circuits as to when
performance under a contract constitutes an “overt act”
sufficient to reset the statute of limitations clock in the
context of a “continuing violation.” Id. at 68-69. The Court
concluded that performance under a contract is a
“manifestation of the ‘overt act,’ the decision to enter the
contract, rather than an independent overt act of its own.”
Id. at 69 (emphasis added).
Consistent with the Second Circuit’s decision in US
Airways, Plaintiffs fail to allege a continuing violation
exception to the statute of limitations. “[T]he decision to
enter the contract” — the no-hire agreement — is the
overt act that starts the limitations period. Actions taken
by Defendants in performance of the no-hire agreement
— such as the Brand Defendants’ alleged refusal to hire
Plaintiffs within [*22] six months of their being employed
by Saks — are “manifestation[s] of the ‘overt act,’ the
decision to enter the contract, rather than . . . independent
overt act[s] of [their] own.” Id. at 69. Likewise, artificially
prelimitations contract constituted a “new and independent act”
sufficient to restart the statute of limitations, since this would
mean “any contractual provision that was subsequently
enforced would arguably restart the statute of limitations.” 753
F.3d 594, 604 (6th Cir. 2014); see also Grand Rapids Plastics,
Inc. v. Lakian, 188 F.3d 401, 406 (6th Cir. 1999) (“Even if the
payment agreement constituted a continuing violation . . . the
individual payments . . . were only a manifestation of the
previous agreement. The individual payments therefore do not
constitute a ‘new and independent act,’ as required to restart
the statute of limitations.”); see also Varner v. Peterson Farms,
371 F.3d 1011, 1019-20 (8th Cir. 2004) (“Performance of the
alleged anticompetitive contracts during the limitations period is
not sufficient to restart the period.” (citations omitted)).
Page 9 of 23
Giordano v. Saks Inc.
suppressed wages paid by Defendants as a result of the
no-hire agreement do not “constitute[] an overt act for
purposes of the continuing-violation rule.” Id. at 68.
Accordingly, Giordano, Hayes, and Wang were first
injured under the no-hire agreement at or around the time
they were first employed by Saks — i.e. prior to the
limitations period.10 Because they have not alleged an
“overt act” within the limitations period — as such is
defined under US Airways — Plaintiffs cannot rely on the
continuing violation doctrine to make their otherwise
untimely claims timely.
Plaintiffs unconvincingly argue that US Airways is not
controlling because it applies only to cases where (1) “the
plaintiff and defendant were parties” to the challenged
agreement and (2) where defendants’ performance is
limited to “mere passive receipt of payments stemming
from the challenged agreements between the parties.”
(Pls.’ Mem. 45.) Plaintiffs argue that instead of relying on
US Airways, the Court should apply the reasoning of
Klehr, 521 U.S. 179, to conclude [*23] that their claims
are timely. (Pls.’ Mem. 41-42.) In Klehr, two dairy farmers
commenced a civil RICO action against a business whom
they alleged sold them a silo that was falsely represented
to limit the amount of oxygen that would come into
contact with grain, thus preventing mold and
fermentation. 521 U.S. at 183-84. The plaintiffs
commenced the action twenty years after they first
purchased the silo and defendants challenged the action
as untimely. Id. at 184. The plaintiffs argued that the
defendants had taken several steps to hide the flaws in
the silo, including installing a device to hide mold and
providing false information indicating that any
discoloration to the resulting feed did not indicate the
presence of mold. Id. In determining whether the RICO
claim was time-barred, the Supreme Court analogized to
the Clayton Act. Id. at 189. The Court noted that in the
context of a “price-fixing conspiracy that brings about a
series of unlawfully high priced sales over a period of
years . . . each sale to the plaintiff [is an overt act that]
starts the statutory period running again . . . . ” Id. (internal
citations omitted).
Plaintiffs argue that their claims are similar to the pricefixing or “overcharge” cases discussed in Klehr —
cases [*24] where the defendants conspire to inflate
prices to the detriment of competitors and consumers.
10 See supra n.7 and accompanying text.
11 Plaintiffs
rely on W. Penn Allegheny Heath Sys., Inc. v.
UPMC, 627 F.3d 85 (3d Cir. 2010) and Turner v. McDonald’s
(See Pls.’ Mem. 41-42.) They argue that their claim is
analogous to that of a plaintiff challenging a price-fixing
scheme because just as each sale to a plaintiff under
such a scheme constitutes an “overt act,” each instance
where Saks paid Plaintiffs an artificially suppressed wage
constitutes an “overt act.” (See id. (“Klehr’s reasoning has
been extended to antitrust actions that allege the
payment of suppressed compensation to a seller for
services, including underpayments to employees.”) 11
Plaintiffs argue that overcharge cases are the “inverse”
of cases where conspirators collude to suppress wage
payments, and accordingly the same rules should be
applied. (Id. at 42-43.) In addition, Plaintiffs argue that “if
a party commits an initial unlawful act that allows it to
maintain market control and overcharge purchasers for a
period longer than four years, purchasers maintain a
right of action for any overcharges paid within four years
prior to their filings.” (Id. at 43 (quoting In re Buspirone
Patent Litig., 185 F. Supp. 2d 363, 378 (S.D.N.Y. 2002)).
Plaintiffs argue that “[e]ach refusal to hire LREs and each
underpayment Defendants made were overt acts in
furtherance [*25] of the [c]onspiracy that injured
Plaintiffs.” (Pls.’ Mem. 47.)
Plaintiffs’ reliance on Klehr and similar overcharge cases
is misplaced. First, Klehr involved a civil RICO claim. 521
U.S. at 183-84. In analyzing defendants’ statute of
limitations challenge, the Supreme Court compared the
RICO statute to the Clayton Act because of the similarity
between the two statutes. See id. at 188-90. However,
the Supreme Court did not specifically analyze the
antitrust laws, nor were the specific facts of Klehr relevant
to a Section 1 claim. The Court is therefore not persuaded
that it should rely on dicta from a factually distinguishable
case, particularly in view of the Second Circuit’s binding
precedent that addresses a factually similar
circumstance. Moreover, price-fixing or “overcharge”
cases are fundamentally conceptually different from the
facts of this case. As the Second Circuit noted in Berkey
Photo, Inc. v. Eastman Kodak Co., price-fixing
conspiracies have two different accrual rules to account
for the two classes of injured party: competitors and
consumers. 603 F.2d 263, 295 (2d Cir. 1979). “Although
the business of a monopolist’s rival may be injured at the
time the anticompetitive conduct occurs, a purchaser, by
contrast, is not harmed until the monopolist actually
exercises its [*26] illicit power to extract an excessive
USA, LLC, No. 19-CV-5524, 2020 U.S. Dist. LEXIS 78435,
2020 WL 3044086, at *4 (N.D. Ill. Apr. 24, 2020) to support this
argument. However, both cases are (1) out of circuit and (2)
predate US Airways, and therefore do not negate US Airways’
binding precedent.
Page 10 of 23
Giordano v. Saks Inc.
price.” Id. The Second Circuit noted that “at the time a
monopolist commits anticompetitive conduct it is entirely
speculative how much damage that action will cause its
purchasers in the future,” id., thus it makes sense to apply
a rule where “a purchaser suing a monopolist for
overcharges paid within the previous four years” may
base their claim on “anticompetitive actions taken before
the limitations period,” id. at 296. As the district court
explained in Rite Aid Corp.: “[t]he purchaser-competitor
distinction is based on differences in when a
monopolization scheme injures each plaintiff.” 708 F.
Supp. 2d at 264 (discussing Berkey Photo). While a price
fixing consumer plaintiff may raise a claim within four
years of the date she made a purchase at an inflated
price, even where a defendant’s “anticompetitive actions
[took place] before the limitations period,” Berkey Photo,
603 F.2d at 296, the competitor plaintiff has four years
from the moment of the defendant’s initial anticompetitive
conduct to bring a claim, Rite Aid Corp., 708 F. Supp. 2d
at 264. The law is thus structured so that both classes of
plaintiff — consumers and competitors — are provided
with a four-year period during which they may bring their
claims.
Plaintiffs,
however,
are
neither
consumers [*27] nor competitors and the price-fixing
analogy is thus inapposite.
Moreover, other considerations weigh against applying
the continuing violation doctrine in this case. Courts
within the Second Circuit “consistently have looked
unfavorably on continuing violation arguments” and have
found that “compelling circumstances must exist before
the limitations period will be extended.” In re
Ciprofloxacin, 261 F. Supp. 2d at 228 (internal quotation
marks and citation omitted). Further, as the Supreme
Court has noted, “[s]tatutes of limitations are designed to
encourage plaintiffs to pursue diligent prosecution of
known claims.” Cal. Pub. Employees’ Ret. Sys. v. ANZ
Sec., Inc., 137 S. Ct. 2042, 2049, 198 L. Ed. 2d 584
(2017) (citations omitted). This is especially true in cases
— such as those that are brought under the Sherman Act
— where Congress has provided for treble damages. See
e.g., Rotella v. Wood, 528 U.S. 549, 557-58, 120 S. Ct.
1075, 145 L. Ed. 2d 1047 (2000) (noting that the provision
for treble damages is “justified by the expected benefit”
of “encouraging civil litigation to supplement Government
efforts to deter and penalize” activity prohibited by the
Clayton Act); Agency Holding Corp. v. Malley-Duff &
Associates, Inc., 483 U.S. 143, 155, 107 S. Ct. 2759, 97
L. Ed. 2d 121 (1987) (noting that a previous version of a
treble damages bill did not include a statute of limitations
since the earlier version “included no private trebledamages remedy, and thus obviously had no need for a
limitations
period”).
The
treble
damages
provision [*28] reflects the congressional objective of
deputizing plaintiffs to serve as “private attorney
general[s]” in order to “vindicate the public interest in
antitrust enforcement.” Gatt Commc’ns, Inc. v. PMC
Assocs., LLC, 711 F.3d 68, 80 (2d Cir. 2013) (quoting
Associated Gen. Contractors, 459 U.S. at 542); see also
Malley-Duff & Assocs., Inc., 483 U.S. at 151 (“Both RICO
and the Clayton Act are designed to remedy economic
injury by providing for the recovery of treble damages,
costs, and attorney’s fees. Both statutes bring to bear the
pressure of ‘private attorneys general’ on a serious
national problem for which public prosecutorial resources
are deemed inadequate; the mechanism chosen to reach
the objective in both the Clayton Act and RICO is the
carrot of treble damages.”). In similar cases, the Supreme
Court has declined to extend the limitations period, noting
that “[b]ecause the provision of treble damages is justified
by the benefit of vindicating the public interest, it would
be strange to provide an unusually long basic limitations
period that could only have the effect of postponing
whatever public benefit [the statute] might realize.”
Rotella, 528 U.S. at 558 (analogizing between the
limitations period under the Clayton and Civil RICO acts
and noting that the Clayton Act sets the limitations clock
running at the moment the plaintiff is injured); see also
Klehr, 521 U.S. at 187 (rejecting a Third Circuit [*29] rule
under which an injured plaintiff could bring civil RICO
claims four years from the last act the defendant
committed as part of a violative conspiracy, since such a
rule would “create[] a limitations period that is longer than
Congress could have contemplated” and noting that such
a rule conflicts with the goal of “encouraging potential
private plaintiffs diligently to investigate”). If the Court
were to accept Plaintiffs’ theory, Plaintiffs could choose
to bring identical claims against Defendants five or even
ten years from now, provided that the no-hire
agreements remained in effect. This approach is contrary
to the Congressional intent that private plaintiffs be
incentivized to promptly “vindicate the public interest.”
Gatt, 711 F.3d at 80 (quoting Associated Gen.
Contractors, 459 U.S. at 542).
While US Airways is not a perfect fit for no-hire
agreements like those alleged by Plaintiffs, it remains the
controlling precedent in this Circuit and, based on its
reasoning, the claims on behalf of Giordano, Hayes, and
Wang are time-barred under the Sherman Act’s four-year
statute of limitations.
c. Beachum’s timely claim
Plaintiffs named Beachum as a Plaintiff in the Amended
Page 11 of 23
Giordano v. Saks Inc.
Complaint that was filed on May 1, 2020. (Am. Compl.)
Thus, the four-year antitrust limitations [*30] period for
Beachum’s claim begins on May 1, 2016. Plaintiffs allege
that Beachum “worked for Saks as a Luxury Retail
Employee between approximately February 2016 and
September 2016, and between the summer of 2018 and
December 2019.” (Am. Compl. ¶ 11.) The Court
construes the Amended Complaint in the light most
favorable to Plaintiffs to find that Beachum’s February
through September 2016 employment with Saks (“2016
Employment”)12 and the summer 2018 through
December 2019 employment (“2018 Employment”)
constitute two distinct contractual periods of employment.
Because an antitrust plaintiff acquires a cause of action
at the moment she is injured by a defendant’s
anticompetitive scheme, the Court construes Beachum
as alleging two causes of action, each of which accrued
at or around the time she began her respective periods
of employment. The second of these — the 2018
Employment, which began in “the summer of 2018” —
falls within the limitations period. See US Airways, 938
F.3d at 51, 69 (affirming the district court’s award of
damages flowing from only one of two “substantially
similar” contracts entered five years apart on the
grounds that only the second had been entered into
during the limitations period); Coffey v. Cushman &
Wakefield, Inc., No. 01-CV-9447, 2002 U.S. Dist. LEXIS
13226, 2002 WL 1610913, at *3 (S.D.N.Y. July 22, 2002)
(where [*31] plaintiff was employed during two different
periods separated by eight years, claims that accrued
during the second period of employment were timely).
This claim is timely.
The Court therefore addresses below the merits of
Beachum’s claim.
d. The antitrust claim
Section 1 of the Sherman Act prohibits “[e]very contract,
combination . . . or conspiracy” that unreasonably
restrains trade or commerce. 15 U.S.C.A. § 1; United
States v. Apple, Inc., 791 F.3d 290, 320 (2d Cir. 2015)
(“Although the Sherman Act, by its terms, prohibits every
agreement ‘in restraint of trade,’ [the Supreme] Court has
long recognized that Congress intended to outlaw only
unreasonable restraints.” (quoting State Oil Co. v. Khan,
12 The statute of limitations for the 2016 employment expired
four years after Beachum was first injured. Since she was first
“cause[d] injury” by Defendants’ actions at or around the time
she began her employment with Saks, (see supra n. 7 and
522 U.S. 3, 10, 118 S. Ct. 275, 139 L. Ed. 2d 199
(1997))), cert. denied, 577 U.S. 1193, 136 S. Ct. 1376,
194 L. Ed. 2d 360 (2016); see also Maric v. St. Agnes
Hosp. Corp., 65 F.3d 310, 313 (2d Cir. 1995) (requiring
“(1) a contract, combination, or conspiracy; (2) in restraint
of trade; (3) affecting interstate commerce”). Thus, to
succeed on a Section 1 claim, “a plaintiff must prove that
the common scheme designed by the conspirators
‘constituted an unreasonable restraint of trade either per
se or under the rule of reason.'” Apple, 791 F.3d at 32021 (citation omitted). Courts presumptively apply the rule
of reason which requires consideration of all of the
circumstances of a case in deciding whether the
challenged practice violates Section 1. See Texaco Inc.
v. Dagher, 547 U.S. 1, 5, 126 S. Ct. 1276, 164 L. Ed. 2d
1 (2006); Cont’l T. V., Inc. v. GTE Sylvania Inc., 433 U.S.
36, 49-50, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977). “Per
se rules of illegality are appropriate only when they
relate [*32]
to
conduct
that
is
manifestly
anticompetitive.” Cont’l T.V., 433 U.S. at 49-50. Courts
may also apply a “quick look” or “truncated rule-of-reason
analysis” to cases that fall between these two standards.
Cal. Dental Ass’n v. F.T.C., 526 U.S. 756, 764, 119 S. Ct.
1604, 143 L. Ed. 2d 935 (1999); see also Nostalgic
Partners, LLC v. Office of the Comm’r of Baseball, No.
21-CV-10876, 2022 U.S. Dist. LEXIS 195273, 2022 WL
14963876, at *5 (“Courts will evaluate conduct under a
‘quick look’ review when a full rule of reason analysis is
unnecessary to show that any procompetitive benefit
does not outweigh the anticompetitive effects.” (citing
National Collegiate Athletic Ass’n v. Board of Regents of
Univ. of Okla., 468 U.S. 85, 109, 104 S. Ct. 2948, 82 L.
Ed. 2d 70 (1984))).
The parties do not appear to dispute that Plaintiffs’
allegations have an effect on interstate commerce.
Accordingly, the Court addresses only (1) whether
Beachum has plausibly alleged a contract, combination,
or conspiracy, and (2) whether Beachum has sufficiently
alleged that Defendants’ conduct restrains trade.
i. Beachum has plausibly alleged a contract,
combination, or conspiracy between Saks and the
Brand Defendants
“To allege an unlawful agreement” under Section 1 of the
Sherman Act, “[p]laintiffs must assert either direct
accompanying text), Beachum acquired a cause of action for
the 2016 employment “at or around” February 2016. This claim
expired “at or around” February 2020 — prior to when she
joined the Amended Complaint in May 2020.
Page 12 of 23
Giordano v. Saks Inc.
evidence (such as a recorded phone call or email in which
competitors agreed to fix prices),” In re Commodity Exch.,
213 F. Supp. 3d 631, 659 (S.D.N.Y. 2016) (quoting Mayor
& City Council of Baltimore (City of Baltimore) v.
Citigroup, Inc., 709 F.3d 129, 136 (2d Cir. 2013)), or
“circumstantial facts supporting the inference that a
conspiracy existed,” In re Treasury Sec. Auction Antitrust
Litig., 595 F. Supp. 3d 22, 32 (S.D.N.Y. 2022). “An
agreement can be alleged through direct evidence;
however, in most antitrust cases ‘this type of “smoking
gun” [*33] can be hard to come by, especially at the
pleading stage.'” Gamm v. Sanderson Farms, Inc., 944
F.3d 455, 465 (2d Cir. 2019) (quoting City of Baltimore,
709 F. 3d at 136); see also Nastasi & Assocs. Inc. v
Bloomberg, L.P., No. 20-CV-5428, 2022 U.S. Dist. LEXIS
172854, 2022 WL 4448621, at *10 (S.D.N.Y. Sept. 23,
2022) (same). “Because unlawful conspiracies tend to
form in secret, such proof will rarely consist of explicit
agreements.” Barry’s Cut Rate Stores, Inc. v. Visa, Inc.,
No. 05-MD-1720, 2019 U.S. Dist. LEXIS 205335, 2019
WL 7584728, at *27 (E.D.N.Y. Nov. 20, 2019) (citation
omitted). “Instead, circumstantial facts supporting the
inference that a conspiracy existed are sufficient.” Id.
(citation omitted); see also In re Google Digital
Advertising Antitrust Litig.,
F. Supp. 3d , 2022 U.S.
Dist. LEXIS 40616, 2022 WL 4226932, at *12 (S.D.N.Y.
2022) (“There is no requirement that the terms of an
unlawful agreement be expressed in any particular
manner or in written form. Conspiratorial agreements
‘nearly always must be proven through inferences that
may fairly be drawn from the behavior of the alleged
conspirators.'” (quoting Anderson News, L.L.C. v.
American Media, Inc., 680 F.3d 162, 183 (2d Cir. 2012)).
Where no direct evidence exists, a plaintiff may support
13 On November 18, 2021, Plaintiffs submitted a letter notifying
the Court of a decision in In re Geisinger Health & Evangelical
Cmty. Hosp. Healthcare Workers Antitrust Litig., No. 4:21-CV00196 (M.D. Pa. Nov. 16, 2021), and submitting it as
supplemental authority in support of their position. (Pls.’ Dec.
18, 2021 Letter, Docket Entry No. 114.) In response,
Defendants argued that Geisinger is not relevant to this case.
(Defs.’ Nov. 22, 2022 Letter, Docket Entry No. 115.) Because
the Court finds Plaintiffs’ allegations regarding the conspiracy
sufficient under binding precedents, it does not address the
relevance of Geisinger.
14 Defendants contend that statements from recruiters about the
existence of no-hire agreements and statements that make no
reference to any no-hire agreement do not support the
existence of the alleged agreements. (Defs.’ Mem. 24-25; Defs.’
Reply 10). Defendants also argue that “statements by local
employees at one store” are insufficient support for the alleged
an inference that an anticompetitive agreement exists by
alleging the existence of “circumstantial evidence and
plus factors,” Gamm, 944 F.3d at 465 (quoting Todd, 275
F.3d at 198), such as “a common motive to conspire,
evidence that shows that the parallel acts were against
the apparent individual economic self-interest of the
alleged conspirators, and evidence of a high level of
interfirm communications,” (id. at 465 (quoting Twombly,
425 F.3d at 114)).
The allegations in the Amended Complaint sufficiently
support the existence of a plausible anticompetitive
conspiracy.13 [*34] The Amended Complaint alleges
that the director of human resources at Saks confirmed
the existence of the no-hire agreements between Saks
and each of the Brand Defendants and specified the key
terms of the agreements. (Am. Compl. ¶ 118.) In addition,
a store manager for Louis Vuitton and a store manager
for Prada informed Hayes that they could not hire
employees who had worked at Saks within the past six
months, and the store manager for Prada confirmed that
all the Brand Defendants were members of the
agreements. (Id. ¶¶ 123, 126-127.) Further, the store
managers at Gucci and at Prada informed Wang of their
adherence to the no-hire agreement, (id. ¶¶ 146-148), a
Gucci store manager told Hayes that “[w]e’re not allowed
to hire Saks employees,” (id. ¶ 115), and a Loro Piana
store manager told Giordano “that because she was a
current employee of Saks, ‘Loro Piana is never going to
take you, and Saks is never going to let you go,'” (id. ¶
161). Plaintiffs have therefore pled specific facts
establishing that no-hire agreements exist between Saks
and each of the Brand Defendants.14 See Turner, 2020
nationwide conspiracy; they characterize the no-hire agreement
as, at most, a “protocol” that employees are “requested to
follow,” and maintain that the agreement described in Louis
Vuitton’s response to Hayes’ EEOC charge was “taken out of
context.” (Defs.’ Mem. 25-26; Defs.’ Reply 10-11.) They rely on
Frost and Ulrich to support their argument that statements made
by employees and third-party recruiters are insufficient to
establish the existence of a conspiracy. See Frost v. LG Elecs.
Inc., No. 16-CV-5206, 2018 U.S. Dist. LEXIS 204502, 2018 WL
6256790, at *3-4 (N.D. Cal. July 9, 2018) (granting motion to
dismiss antitrust action concerning purported no-hire
agreement where the plaintiff alleged statements by a recruiter
and by employees about a “gentleman’s agreement” and an
“understanding” not to hire another’s employees), aff’d, Frost v.
LG Elecs., Inc., 801 F. App’x 496 (9th Cir. 2020); Ulrich v.
Moody’s Corp., No. 13-CV-8, 2014 U.S. Dist. LEXIS 138082,
2014 WL 4977562, at *17 (S.D.N.Y. Sept. 30, 2014) (“Proving
that one manager for one of the companies made such a
statement, or that two other executives sensed an ‘unspoken
Page 13 of 23
Giordano v. Saks Inc.
U.S. Dist. LEXIS 78435, 2020 WL 3044086, at *1-2
(holding that the plaintiff stated a claim based on a nohire agreement that pre-dated her employment, and not
discussing any allegations about when or how the
agreement was formed); Seaman v. Duke Univ., No. 15CV-462, 2018 U.S. Dist. LEXIS 16136, 2018 WL 671239,
at *4 (M.D.N.C. Feb. 1, 2018) (granting motion to certify
class in relevant part where the defendant contested the
existence of a no-hire agreement, but the named plaintiff
presented an e-mail supporting the existence of the
agreement).
Finally, Plaintiffs’ allegations are economically plausible.
The alleged no-hire agreements are similar in structure to
no-hire agreements that other courts have found to
plausibly give rise to a claim. See Aya Healthcare Servs.,
Inc., 2018 U.S. Dist. LEXIS 102582, 2018 WL 3032552,
at *16 (denying motion to dismiss Sherman Act claim
concerning unilateral no-hire agreements that two large
employers of traveling nurses and medical technicians
imposed on their subcontractors); see also Turner, 2020
U.S. Dist. LEXIS 78435, 2020 WL 3044086, at *1-2
(explaining
that
no-hire
agreements
benefit [*35] employers at the expense of employees by
lowering employee mobility and depressing wages);
Hunter v. Booz Allen Hamilton, Inc., 418 F. Supp. 3d 214,
222-23 (S.D. Ohio 2019) (denying motion to dismiss
antitrust claim concerning no-poach agreements and
concluding that the plaintiffs’ argument that the
agreements suppressed compensation “pleaded . . . an
injury of the type the antitrust laws were intended to
prevent”); In re Papa John’s Emp. and Franchisee Emp.
Antitrust Litig., No. 18-CV-0825, 2019 U.S. Dist. LEXIS
181298, 2019 WL 5386484, at *9 (W.D. Ky. Oct. 21,
2019) (“Plaintiffs contend that the [n]o-[h]ire provision is
an agreement not to compete for labor and that the
agreement had the purpose and effect of depressing
rule,’ fails to detail any particular action on the part of either
company, or come close to outlining the plausibility of an
agreement between the two companies.”). However, as
discussed above, the Amended Complaint does more than
allege that isolated employees and third-party recruiters
confirmed the existence of these agreements. Moreover, a
Plaintiff is not required to identify the exact circumstances
surrounding the creation of a conspiracy, but rather need only
allege “enough factual matter (taken as true) to suggest that an
agreement was made.” Starr v. Sony BMG Music Ent., 592 F.3d
314, 325 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 555).
15 Defendants contend that Plaintiffs’ allegations describe “lots
of employee mobility,” pointing to three instances of mobility,
which Defendants argue undermines the plausibility of the
alleged conspiracy. (Defs.’ Mem. 22 (emphasis omitted)).
wages and diminishing employment opportunities. Courts
within the Sixth Circuit have found such allegations
sufficient to satisfy the antitrust injury requirement.”).
Nor does the fact that Plaintiffs allege instances of
employee mobility in the Amended Complaint, (Am.
Compl. ¶¶ 108, 129, 185), undermine Plaintiffs’ argument
that the no-hire agreements lower employee mobility by
preventing Saks employees from working for the Brand
Defendants. See In re High-Tech Emp. Antitrust Litig.,
856 F. Supp. 2d 1103, 1120-23 (N.D. Cal. 2012) (holding
that even though bilateral “do not cold call” agreements
covered just six of twenty-one possible pairings between
the defendants, the plaintiffs had sufficiently pled facts
alleging a plausible anticompetitive conspiracy). Indeed,
as Plaintiffs [*36] note, the mobility they describe in the
Complaint is entirely consistent with the no hireagreement they allege.15
Plaintiffs have sufficiently alleged the existence of an
anticompetitive agreement between Saks and the Brand
Defendants.
ii. Restraint of trade
To successfully plead the second element of a Section 1
claim, “restraint of trade,” a plaintiff must show that
defendants restrained trade under one of three
standards: the rule of reason, “quick look,” or per se. See,
e.g., Cal. Dental, 526 U.S. at 763 (1999); Nat’l Collegiate
Athletic Ass’n, 468 U.S. at 103-04; Cap. Imaging Assocs.,
P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537,
542 (2d Cir. 1993). Courts “presumptively” apply the rule
of reason, which requires consideration of all of the
circumstances of a case, Dagher, 547 U.S. at 5, including
“specific information about the relevant business” and
“the restraint’s history, nature, and effect,” in deciding
However, each instance is consistent with the no-hire
agreements Plaintiffs allege. First, Defendants point to Hayes’
prior employment at Gucci and Louis Vuitton as an example of
mobility. (Am. Compl. ¶ 108.) Plaintiffs allege that the no-hire
agreement prevented Saks employees from moving to
competitors, not the reverse. Defendants also point to the fact
that Hayes observed a former colleague at Saks move to Louis
Vuitton, (id. ¶ 129), but the Amended Complaint indicates that
Saks explicitly permitted this employee to leave, which is
consistent with the alleged no-hire agreements, (id. ¶ 132).
Finally, Defendants point to the fact that Giordano was able to
find a position with a luxury retailer not carried by Saks, (id. ¶
185), but this too is consistent with the no-hire agreements,
which are alleged to exist between Saks and the brands it
carries.
Page 14 of 23
Giordano v. Saks Inc.
whether the challenged restraint on trade violates the
antitrust laws. Leegin Creative Leather Prods., Inc. v.
PSKS, Inc., 551 U.S. 877, 885-86, 127 S. Ct. 2705, 168
L. Ed. 2d 623 (2007) (citation omitted). The Court
considers below each standard.
1. The per se standard is not applicable to Plaintiffs’
allegations
Defendants argue that per se treatment is inappropriate
in this case because per se treatment is appropriate in
the “no poach” context “only if it is a ‘naked’ restraint.”
(Defs.’ Mem. 28; Defs.’ Rep. 8-12.)
Plaintiffs argue that their claim falls into that “limited
class [*37] of cases” that are analyzed under the per se
standard. Cap. Imaging, 996 F.2d at 542. They liken the
alleged no-hire agreement to a “market division” or
“market allocation” agreement and note that the Supreme
Court has found such agreements to be per se violations.
(Pls.’ Mem. 22.) In support, Plaintiffs cite to recent
guidance from the Department of Justice which states
that “[a]n agreement among competing employers to limit
or fix the terms of employment for potential hires may
violate the antitrust laws if the agreement constrains
individual firm decision-making with regard to . . . job
opportunities.”16 (Pls.’ Mem. 23.) Plaintiffs further rely on
a leading antitrust treatise, which explains that “[a]n
agreement among employers that they will not compete
against each other for the services of a particular
employee or prospective employee is, in fact, a marketdivision agreement and if such agreements are
horizontal, naked, and among independent firms, they
are unlawful per se.” Areeda & Hovenkamp ¶ 2013c.
Plaintiffs argue that because Saks and the Brand
Defendants are competitors, the no-hire agreement is a
horizontal restraint that should be accorded per se
treatment. (Pls.’ Mem. 10-26.)17
“Conduct considered illegal per se is invoked only in a
limited class of cases where a defendant’s actions are so
plainly harmful to competition and so obviously lacking in
16 See
also Antitrust Guidance for Human Resource
Professionals (the “Guidance”) (Oct. 2016), available at
https://www.justice.gov/atr/file/903511/download.
17 On December 21, 2021, Plaintiffs submitted a letter notifying
the Court of a Statement of Interest the Department of Justice
filed in In re Outpatient Med. Ctr. Emp. Antitrust Litig., No. 21CV-305, (N.D. Ill. Dec. 9, 2021), and submitting it as
supplemental authority in support of their position. (Pls.’ Dec.
any redeeming pro-competitive values that they are
‘conclusively
presumed
illegal
without
further
examination.'” Cap. Imaging, 996 F.2d at 542 (citations
omitted). “Examples of per se illegal conduct include
group boycotts, division of markets, and tying
arrangements.” Bogan v. Hodgkins, 166 F.3d 509, 514
(2d Cir. 1999); see also Major League Baseball Props.,
Inc. v. Salvino, Inc., 542 F.3d 290, 306-08 (2d Cir. 2008)
(“For conduct to be illegal per se, it must fall within the
narrow range of behavior that is considered so plainly
anti-competitive and so lacking in redeeming procompetitive value that it is presumed illegal without
further examination. Restraints such as price fixing,
market divisions, tying arrangements, and group boycotts
have all been found to be unreasonable in and of
themselves.” (cleaned up)); Singh v. Am. Racing-Tioga
Downs Inc., No. 21-CV-947, 2021 U.S. Dist. LEXIS
246306, 2021 WL 6125432, *4 (S.D.N.Y. Dec. 28, 2021)
(“Per se violations include, for example, horizontal and
vertical price-fixing; division of a market into territories;
certain tying arrangements; and some group boycotts
involving concerted refusals to deal with a competitor.”
(citation omitted)).
“Before characterizing an arrangement as a per se pricefixing agreement meriting condemnation, a court should
determine [*39] whether it is a naked restraint of trade
with no purpose except stifling of competition.” Ariz. v.
Maricopa Cnty. Med. Soc., 457 U.S. 332, 362, 102 S. Ct.
2466, 73 L. Ed. 2d 48 (1982) (Powell, J., dissenting)
(cleaned up); see also Freedom Holdings, Inc. v. Spitzer,
447 F. Supp. 2d 230, 249 (S.D.N.Y. 2004) (“[T]he per se
rule should be ‘carefully limited to “naked” restraints,
which are restraints that lack redeeming social benefits'”
(quoting Areeda & Hovenkamp ¶1509c)). A “naked”
restraint is one where “the restriction on competition is
unaccompanied by new production or products.” Major
League Baseball Props., 542 F.3d at 339 (Sotomayor, J.,
concurring) (quoting Polk Bros., Inc. v. Forest City
Enters., Inc., 776 F.2d 185, 188-89 (7th Cir. 1985); see
also In re Ins. Brokerage Antitrust Litig., 618 F.3d 300,
345 (3d Cir. 2010) (explaining that a “naked” restraint is
one “that is not an integral part of an arrangement with
22, 2021 Letter, Docket Entry No. 116.) In their December 27,
2021 response, Defendants argued that the Department of
Justice Letter is not relevant to this case. (Defs.’ Dec. 27, 2021
Letter, Docket Entry No. 117.) The Court agrees with
Defendants: Outpatient involved a naked horizontal market
allocation agreement, whereas Saks and the Brand Defendants
are
not
“naked”
horizontal
competitors,
as
discussed [*38] infra. The Department of Justice Letter is thus
inapplicable to the facts of this case.
Page 15 of 23
Giordano v. Saks Inc.
redeeming competitive virtues”). “Naked” restraints are
contrasted with “ancillary restraints,” which are “part of a
larger endeavor whose success they promote.” 18 Major
League Baseball Props., 542 F. 3d at 339 (Sotomayor,
J., concurring) (citation omitted); see also Dagher, 547
U.S. at 6 (explaining that an “ancillary restraint” is one
“imposed by a legitimate business collaboration, such as
a business association or joint venture, on nonventure
activities”). Ancillary restraints are “‘exempt[ed] . . . from
the per se rule,’ such that the rule of reason applies.”
United States v. Aiyer, 33 F.4th 97, 115 (2d Cir. 2022)
(citations omitted). Accordingly, under the ancillary
restraints doctrine, a court “must determine whether the
nonventure restriction [*40] is a naked restraint on trade,
and thus invalid, or one that is ancillary to the legitimate
and competitive purposes of the business association,
and thus valid.” (Id. at 115-16 (quoting Dagher, 547 U.S.
at 7)). See also Major League Baseball Props., 542 F.3d
at 339 (“A court must distinguish between ‘naked’
restraints, those in which the restriction on competition is
unaccompanied by new production or products, and
‘ancillary’ restraints, those that are part of a larger
endeavor whose success they promote.” (quoting Polk
Bros., 776 F.2d at 188-89)).
The no-hire agreements [*41] Plaintiffs allege are not
“naked” agreements between independent firms.
Plaintiffs state that Saks and the Brand Defendants are
competitors, (see e.g., Am. Compl. ¶ 39), but they also
acknowledge that Defendants collaborate, that the Brand
Defendants “sell their goods and apparel through
department stores (including Saks)” and through
“concessions (including concessions at Saks stores),”
(id. ¶ 21.) Such a relationship is not the same as one
between “naked” competitors. Restraints that accompany
such collaborative business relationships are generally
18 A leading antitrust treatise explains:
The most useful classification scheme for antitrust analysis
segregates so-called ‘naked’ and ‘ancillary’ agreements.
This all-important classification largely determines the
course of subsequent legal evaluation of any restraint.
While not all naked restraints are unlawful, the
presumption against them is very strong, and most are
condemned either as illegal ‘per se’ or with only a truncated
inquiry into power and effects. By contrast, while not all
ancillary restraints are lawful, most are. More important,
once a restraint is found to be ancillary, the court pursues
its inquiry with a presumption of lawfulness and requires
more elaborate proof of power and effects. The burden of
proof is placed mainly on the plaintiff.
Areeda & Hovenkamp ¶ 1904.
not afforded per se treatment.19 See Aiyer, 33 F.4th at
115; Dagher, 547 U.S. at 6.
Plaintiffs rely on several “no-hire” cases to support their
argument that per se (or “quick look”) treatment is
appropriate, but the Court is not persuaded by these
cases.20 Most of the cases Plaintiffs cite involve
horizontal competitors whose conduct did not involve any
sort of collaborative relationship. Moreover, in only two of
the cases, Ebay and In re Ry. Indus. Emple. No-Poach
Antitrust Litig., did the court address arguments that the
challenged
agreements
were
ancillary
to
a
procompetitive business purpose. See Ebay, 968 F.
Supp. 2d 1030 (N.D. Cal. 2013); In re Ry. Indus. Emp.
No-Poach Antitrust Litig., 395 F. Supp. 3d 464 (W.D.
Penn. 2019). However, in neither case did the pleadings
include details of (1) a procompetitive [*42] collaboration
between defendants and (2) details illustrating how the
challenged agreement is related to that procompetitive
collaboration. In contrast, Plaintiffs allege in the Amended
Complaint that (1) the Brand Defendants sell their
products and have concessions in Saks stores, (Am.
Compl. ¶ 21), and (2) absent the no-hire agreement,
there would be a continual risk that the Brand Defendants
would use their concessions in Saks stores to recruit
employees, (id. ¶¶ 56-57, 83).21 Ebay and In re Ry.
Indus. Emple. No-Poach Antitrust Litig., as well as the
other “no-hire” cases cited by Plaintiffs are thus
distinguishable.
Accordingly, per se treatment is inappropriate for
Beachum’s claim.
2. The “quick look” standard is not applicable to
Plaintiffs’ allegations
19 Indeed, the DOJ Guidance cited by Plaintiffs clarifies that per
se treatment is appropriate where “the agreement is separate
from or not reasonably necessary to a larger legitimate
collaboration between the employers.”
20 Plaintiffs
rely on the following no-hire/no-poach cases to
support per se treatment: In re Ry. Indus. Emple. No-Poach
Antitrust Litig., 395 F. Supp. 3d 464 (W.D. Penn. 2019); In re
Animation Workers Antitrust Litig., 123 F. Supp. 3d 1175 (N.D.
Cal. 2015); United States v. eBay, Inc., 968 F. Supp. 2d 1030
(N.D. Cal. 2013); In re High-Tech Emple. Antitrust Litig., 856 F.
Supp. 2d 1103 (N.D. Cal. 2012). All of these cases involve
naked horizontal agreements between competitors and each is
thus factually distinguishable.
21 See also n.22, infra.
Page 16 of 23
Giordano v. Saks Inc.
Defendants argue that “quick look” is inappropriate for
Beachum’s claim and the Court should apply rule of
reason analysis. (Defs.’ Mem. 30 n.2.) In support, they
argue that the no-hire agreements are ancillary to a
“broad, legitimate, and procompetitive collaboration”
between Saks and the Brand Defendants, in which Saks
hosts the Brand Defendants’ concessions and sells their
products
in
its
stores,
and
therefore
the
“ancillary [*43]
restraints” doctrine applies and
Beachum’s claim must be considered under the rule of
reason. (Defs.’ Mem. 28-30.)
Plaintiffs contend that if the Court declines to apply per
se treatment to their claim, it should instead apply “quick
look” analysis. (Pls.’ Mem. 33-34.) In support, Plaintiffs
note that in the franchisor-franchisee context, courts have
tended to apply either per se or “quick look” treatment to
no-hire agreements. (Pls.’ Mem. 34.) They contend that
although the no-hire agreements in this case are
horizonal and thus “distinguishable from . . . vertical
franchisor-franchisee restraints . . . at a minimum, if
Defendants’ no-hire agreements are not per se unlawful,
they should be subject to quick look.” (Id.)
“‘Quick look’ is essentially an abbreviated form of rule of
reason analysis, to be used in cases in which the
likelihood of anticompetitive effects is so obvious that ‘an
observer with even a rudimentary understanding of
economics could conclude that the arrangements in
question would have an anticompetitive effect on
customers and markets.'” Madison Square Garden, L.P.
v. NHL, 270 F. App’x 56, 58 (2d Cir. 2008) (quoting Cal.
Dental Ass’n, 526 U.S. at 770); see also Bd. of Regents
of Univ. of Okla., 468 U.S. at 110 (holding that a “naked
restraint on price and output requires some competitive
justification even in the [*44] absence of a detailed
market analysis”); Apple, 791 F.3d at 339 (Lohier, J.
concurring in part) (per se analysis “clearly applie[d]” to
horizontal agreement to raise consumer-facing ebook
prices, but the majority performed a quick look analysis
“in response to the dissent”); In re Polygram Holding, 416
F.3d 29, 35, 37, 367 U.S. App. D.C. 367 (D.C. Cir. 2005)
(an “elaborate market analysis” is unnecessary where the
“deleterious effect upon consumers” is easily
ascertainable). “‘Quick look’ [review] effectively relieves
the plaintiff of its burden of providing a robust market
22 Girodano’s
attempt to seek employment with Brand
Defendant Loro Piana illustrates the risk that Saks would face
absent the no-hire agreement. Giordano alleges that while
employed at Saks, she worked at the concession of Loro Piana,
and, after having “learned the ins-and-outs of Loro Piana’s
analysis by shifting the inquiry directly to a consideration
of the defendant’s procompetitive justifications.” Apple,
791 F.3d at 330. However, the Supreme Court has
clarified that “[m]ost restraints challenged under the
Sherman Act — including most joint venture restrictions
— are subject to the rule of reason . . . .” NCAA v. Alston,
141 S. Ct. 2141, 2155, 210 L. Ed. 2d 314 (2021). The
Court explained that while the anticompetitive effects of
some restraints may be ascertained “in the twinkling of
an eye,” id. (citations omitted), most restraints fall “in the
great in-between” and warrant rule of reason analysis, id.
The Court further clarified that quick look should not be
applied in cases where courts have not “amassed
considerable experience with the type of restraint at issue
and can predict with confidence [*45] that it would be
invalidated in all or almost all instances.” Id. at 2156
(cleaned up).
The Court cannot unequivocally “conclude that the [nohire agreement between Defendants] would have an
anticompetitive effect on customers and markets.”
Madison Square Garden, 270 F. App’x at 58 (quoting Cal.
Dental, 526 U.S. at 770). As described in Section II.d.ii.1,
the Amended Complaint indicates that the no-hire
agreements are part of a larger “legitimate business
collaboration” between Saks and the Brand Defendants,
Dagher, 547 U.S. at 6. Thus, “quick look” treatment is not
appropriate since the challenged restraints “might
plausibly be thought to have a net procompetitive effect,”
Cal. Dental, 526 U.S. at 771, as they allow Saks stores
to exist and the Brand Defendants to sell their products
through a nationwide retailer. Plaintiffs themselves note
that absent the no-hire agreement, there would be a
continual risk that the Brand Defendants would use their
concessions in Saks stores to recruit employees. 22 (Am.
Compl. ¶¶ 56-57, 83.) This indicates that there is a
procompetitive rationale for the challenged restraints that
forecloses quick look treatment. See Bogan, 166 F.3d at
514 n.6 (“Under quick look, once the defendant has
shown a procompetitive justification for the conduct, ‘the
court must proceed to weigh the overall reasonableness
of the [*46] restraint using a full-scale rule of reason
analysis.'” (quoting United States v. Brown Univ., 5 F.3d
658, 669 (3d Cir. 1993))). Moreover, the Court cannot
conclude that courts have “amassed ‘considerable
experience'” with the type of restraint challenged in this
product lines and customer base,” believed she was now
“keenly qualified” for a position at a Loro Piana boutique. (Am.
Compl. ¶¶ 156-60.) Giordano approached the manager of a
Loro Piana store to seek employment, but was informed that
she could not be considered since she was a current Saks
employee. (Id. ¶¶ 159-61.)
Page 17 of 23
Giordano v. Saks Inc.
case. Alston, 141 S. Ct. at 2156 (citation omitted). The
parties do not cite, and the Court has not found, any case
where the quick look standard was applied to the merits
of a no-hire agreement. Accordingly, this is not a situation
where “in case after case [courts have] reach[ed]
identical conclusions,” Cal. Dental, 526 U.S. at 781, such
that the Court can determine the no-hire agreements’
effect on competition in “the twinkling of an eye,” Alston,
141 S. Ct. at 2155. See also Nostalgic Partners, 2022
U.S. Dist. LEXIS 195273, 2022 WL 14963876, at *6
(declining to apply quick look review in light of Alston).
Plaintiffs rely on several franchisor no-hire cases where
courts declined to choose which standard to apply at the
pleadings stage to argue that “determination of whether
Plaintiffs’ claims should be analyzed under a standard
other than the per se rule should not be resolved at the
pleading stage.”23 (Pls.’ Mem. 4.). While the franchisor
cases have both horizonal and vertical elements similar
to those in this case, they are not sufficiently factually
similar that the Court finds them persuasive. In addition,
several of the franchisor [*47] cases Plaintiffs rely on
underscore the wisdom of applying the rule of reason to
claims that combine vertical and horizontal elements.24
For example, in Deslandes v. McDonald’s USA, LLC,25
the plaintiff challenged a provision in the McDonalds
franchise agreement that prevented McDonalds
franchises from recruiting or hiring the employees of
other McDonalds franchises. 2018 U.S. Dist. LEXIS
105260, 2018 WL 3105955, at *1 (N.D. Ill. June 25,
2018). The court applied “quick look” at the pleading
stage, finding that the plaintiff had alleged conduct that
23 See
Fuentes v. Royal Dutch Shell PLC, No. 18-CV-5174,
2019 U.S. Dist. LEXIS 224708, 2019 WL 7584654, at *1 (E.D.
Penn. Nov. 25, 2019) (“[T]his Court declines to determine which
mode of analysis applies to the challenged no-poach provision
at the pleading stage.”); In re Papa John’s Emp. and Franchisee
Emp. Antitrust Litig., No. 18-CV-825, 2019 U.S. Dist. LEXIS
181298, 2019 WL 5386484, at *9 (W.D. Ky. Oct. 21, 2019) (“The
Court declines to announce a rule of analysis at this juncture.”);
Blanton v. Domino’s Pizza Franchising LLC, No. 18-CV-13207,
2019 U.S. Dist. LEXIS 87737, 2019 WL 2247731, at *4 (E.D.
Mich. May 24, 2019) (same); Butler v. Jimmy John’s Franchise,
LLC, 331 F. Supp. 3d 786, 797 (S.D. Ill. 2018) (“[T]he Court
cannot decide at this early stage in the proceedings which rule
will apply.”).
“might be unlawful under quick-look analysis, [but] the
evidence at a later stage may not support it.” 2018 U.S.
Dist. LEXIS 105260, [WL] at *8. The court allowed the
plaintiff to proceed with her claim under the quick look
standard and permitted her to amend her complaint to
“include a claim under the rule of reason” if she so chose.
Id. The plaintiff did not amend her complaint to include a
rule of reason claim and, after discovery, the court
concluded that the plaintiff’s claims required rule of
reason analysis and were therefore insufficiently
pleaded. Deslandes v. McDonald’s USA, LLC, No. 17CV-4857, 2022 U.S. Dist. LEXIS 113524, 2022 WL
2316187, at *7 (N.D. Ill. June 28, 2022) (finding that
plaintiff “failed to allege plausibly that the restraint is
unlawful under rule-of-reason analysis”). While the facts
of Deslandes are not identical to those before the Court,
given (1) the collaborative [*48] elements of the
relationship between Saks and the Brand Defendants, (2)
the uncertainty of the ultimate anticompetitive effect of
the challenged agreement, and (3) the lack of judicial
experience with no-hire agreements that have both
horizontal and vertical elements, quick look treatment is
inappropriate for Beachum’s claim. See Cal. Dental, 526
U.S. at 770 (“[Q]uick-look analysis carries the day when
the great likelihood of anticompetitive effects can easily
be ascertained ……. “).
Accordingly, the Court addresses whether Beachum has
pleaded sufficient facts to allow the Court to conduct a
rule of reason analysis.
iii. The “rule of reason” applied to Beachum’s claim
unilateral no-hire agreement between the dominant national
travel nurse staffing agency and other staffing agencies with
whom it subcontracted. 2018 U.S. Dist. LEXIS 102582, [WL] at
*1-3. The court found it was “unable to determine at this stage
in the litigation ‘the level of analysis to apply'” and “must instead
make that determination based on factual evidence.” 2018 U.S.
Dist. LEXIS 102582, [WL] at *15 (citations omitted). However,
at summary judgment the district court applied the rule of
reason standard and dismissed Aya’s claims and the Ninth
Circuit affirmed, finding that since “the restraint is ancillary to
the parties’ broader agreement, the district court correctly
subjected it to the rule-of-reason standard.” Aya Healthcare
Servs. v. AMN Healthcare, Inc., 9 F.4th 1102, 1111 (9th Cir.
2021).
25 On July 21, 2022, Defendants submitted a letter notifying the
24 Plaintiffs also rely on the non-franchisor case Aya Healthcare
Servs., Inc., No. 17-CV-205, 2018 U.S. Dist. LEXIS 102582,
2018 WL 3032552 (S.D. Cal. June 19, 2018) to support their
argument that the Court should not apply the rule of reason
standard at the pleading stage. Aya involved a perpetual,
Court of the Deslandes decision and submitting it as
supplemental authority in support of their position. (Defs.’ July
8, 2022 Letter, Docket Entry No. 125.) In their July 21, 2022
response, Plaintiffs argued that Deslandes is not relevant to this
case. (Pls.’ July 21, 2022 Letter, Docket Entry No. 127.)
Page 18 of 23
Giordano v. Saks Inc.
“Rule of reason” analysis requires Courts to consider “all
of the circumstances of a case,” including “specific
information about the relevant business and the
restraint’s history, nature, and effect,” in deciding whether
the challenged restraint on trade violates Section 1.
Leegin, 551 U.S. at 885-86 (citation omitted). Under the
standard rule of reason analysis, courts apply a threestep burden-shifting framework. United States v. Am.
Express Co., 838 F.3d 179, 194 (2d Cir. 2016). First, the
plaintiff must demonstrate that the defendant’s actions
“had an actual adverse effect on competition as a whole
in the relevant market.” Id. (citing [*49] Cap. Imaging,
996 F.2d at 543 (emphasis in original)). In the antitrust
context, “a market has two components: a product market
and a geographic market.” Concord Assocs., L.P. v.
Entm’t Props. Trust, 817 F.3d 46, 52 (2d Cir. 2016)
(citation omitted). To satisfy the initial burden, a plaintiff
may rely either on (1) direct evidence of actual adverse
effects in the relevant market or (2) circumstantial
evidence “showing that the defendant has ‘sufficient
market power to cause an adverse effect on competition'”
in the relevant market. Am. Express Co., 838 F.3d at 194
(citations omitted). “Because market power is but a
surrogate for detrimental effects, a plaintiff seeking to use
market power as a proxy for adverse effect must show
market power, plus some other ground for believing that
the challenged behavior could harm competition in the
market, such as the inherent anticompetitive nature of the
defendant’s behavior or the structure of the interbrand
market.” Id. at 194-95 (cleaned up). If the plaintiff is able
to make this prima facie showing, “the burden shifts to the
defendant to offer evidence of any procompetitive effects
of the restraint at issue.” Id. at 195. Upon rebuttal by the
defendant, “the burden shifts back to the plaintiff[ ] to
prove that any legitimate competitive benefits offered by
defendant[
]
could
have
been
achieved
through [*50] less restrictive means.” Id. (alteration in
original) (citation omitted).
1. Beachum has plausibly defined a relevant
product market
Defendants argue that Plaintiffs’ definition of the market
for luxury retail labor is deficient because it does not
address
“cross-elasticity
of
demand
or
the
interchangeability of [defendants’ employees] with one
another, with other skilled luxury retail labor, with other
skilled retail labor, or even with other labor generally.”
(Defs.’ Mem. 32.)
Plaintiffs argue that, at the pleadings stage, they have
sufficiently alleged that LREs’ “specialized training and
institutional knowledge” makes it unlikely that they will
“view jobs at non-luxury retailers . . . as viable
substitutes.” (Pls.’ Mem. 37.) They further argue that
“intensive analysis of the relevant market definition is
inappropriate at the pleadings stage.” (Id.)
The determination of the relevant market is a “necessary
predicate” to analyzing antitrust claims under the rule of
reason. United States v. E.I. du Pont de Nemours & Co.,
353 U.S. 586, 593, 77 S. Ct. 872, 1 L. Ed. 2d 1057 (1957);
see also Ohio v. Am. Express Co. (“Amex”), 138 S. Ct.
2274, 2285, 201 L. Ed. 2d 678 (2018) (“[C]ourts usually
cannot properly apply the rule of reason without an
accurate definition of the relevant market.”); City of New
York v. Grp. Health Inc., 649 F.3d 151, 155 (2d Cir. 2011)
(“To state a claim under § 7 of the Clayton Act, §§ 1 or 2
of the Sherman Act, or New York’s Donnelly Act, a
plaintiff must allege a plausible relevant market [*51] in
which competition will be impaired.”). For Section 1
claims, the market definition “provides the context against
which to measure the competitive effects of an
agreement.” Geneva Pharm. Tech. Corp. v. Barr Lab’ys.
Inc., 386 F.3d 485, 496 (2d Cir. 2004). In defining the
market, courts examine both the relevant product and the
relevant geographic markets. PepsiCo, Inc. v. Coca-Cola
Co., 315 F.3d 101, 105 (2d Cir. 2002). “A relevant product
market consists of ‘products that have reasonable
interchangeability for the purposes for which they are
produced — price, use and qualities considered.'” Id.
(quoting E.I. du Pont de Nemours & Co., 351 U.S. at 404).
A relevant geographic market is the “area of effective
competition . . . in which the seller operates, and to which
the purchaser can practicably turn for supplies.” United
States v. Eastman Kodak Co., 63 F.3d 95, 104 (2d Cir.
1995) (citation omitted).
“Market definition is ordinarily a deeply fact-intensive
inquiry.” US Airways, 275 F.3d at 199 (internal quotations
marks and citation omitted). Therefore, “courts hesitate
to grant motions to dismiss for failure to plead a relevant
product market.” Todd, 275 F.3d at 199-200. However,
“[w]here the plaintiff fails to define its proposed relevant
market with reference to the rule of reasonable
interchangeability and cross-elasticity of demand, or
alleges a proposed relevant market that clearly does not
encompass all interchangeable substitute products even
when all factual inferences are grant…
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Achiever Papers is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Dissertation Writing Service Works
First, you will need to complete an order form. It's not difficult but, if anything is unclear, you may always chat with us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download