Federal Trade Commission Chairman Andrew N. Ferguson Issues Warning Letters to Law Firms on Anticompetitive DEI Hiring

Today, Federal Trade Commission Chairman Andrew N Ferguson issued a letter to 42 law firms regarding potentially unfair and anticompetitive employment practices.

All of these firms recently participated in the Mansfield Certification program, according to public information. Mansfield Certification is a creation of the company Diversity Lab, a for-profit DEI-consultancy business, which claims to “write the unwritten rules” establishing common race and gender-based employment practices across the legal industry. To receive the certification, law firms must agree to follow certain of Diversity Lab’s DEI-based employment standards. Public information also suggests that they would meet regularly with Diversity Lab and their competitor law firms to discuss common implementation of Diversity Lab’s criteria.

The letter recipients are among the largest law firms in the United States, collectively employing over 50,000 attorneys subject to Diversity Lab’s criteria. Hundreds of other law firms, employing tens of thousands more attorneys, appear to have received Mansfield Certification as well. The letter reminds law firms that collusion in hiring practices, including through competitors coordinating on the personal characteristics of their candidate pools and sharing sensitive information about pay and benefits, can violate the antitrust laws.

“Potentially anticompetitive collusion between law firms on DEI metrics can include quotas by which they agree to compose panels of job candidates based on race, sex, or other personal characteristics other than the candidate’s merit, or by which law firms agree to make final decisions about hiring and promotions based on those personal characteristics,” said Chairman Ferguson. “Such agreements can distort competition for labor in legal professions, including along dimensions like hiring decisions, pay, and promotions.”

Letters were sent to the following law firms: Alston & Bird, Arnold & Porter, BakerHostetler, Cooley, Covington & Burling, Davis Polk, Debevoise & Plimpton, Dentons, DLA Piper, Faegre Drinker, Fox Rothschild, Gibson Dunn, Goodwin Procter, Gordon Rees, Greenberg Traurig, Hogan Lovells, Holland & Knight, Husch Blackwell, Jackson Lewis, K&L Gates, Latham & Watkins, Lewis Brisbois, Littler, Mayer Brown, McDermott Will & Emery, McGuireWoods, Morgan Lewis, Nelson Mullins, Ogletree Deakins, Paul Weiss, Perkins Coie, Polsinelli, Reed Smith, Sheppard Mullin, Sidley Austin, Skadden, Troutman Pepper, White & Case, WilmerHale, Wilson Elser, Wilson Sonsini, and Winston & Strawn.