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Banking & Finance

DOJ Drops Probe Of NCino's Hiring, Wage Practices

By Jenny Callison, posted Feb 16, 2023
The U.S. Department of Justice's Antitrust Division recently closed an investigation into Wilmington-based nCino’s hiring and wage practices, and is taking no further action. Nor is the DOJ imposing any fines, sanctions or penalties as part of the investigation, officials said.
 
The review resulted from a lawsuit filed in early 2021 against both nCino and Live Oak Bank’s software engineering department, alleging that the companies, along with Live Oak joint venture firm Apiture, had agreed to not recruit, hire or poach each other’s employees, in violation of federal and state antitrust laws.  
 
On Feb. 23, 2021, the DOJ’s Antitrust Division served nCino and certain of its officers and employees with grand jury subpoenas that sought documents and information concerning its investigation. 
 
“We are very happy the process is over and that the expenses associated with cooperating with the investigation will now cease, and we will vigorously defend ourselves in the ongoing civil case, which is wholly without merit,” nCino spokeswoman Kathryn Cook said Wednesday. “As a company founded over 11 years ago in Wilmington, we are a proud, longtime employer in this area, with a strong culture and a commitment to giving back to our local community.”
 
The class action lawsuit was brought by Joseph McAlear, a former employee of both Live Oak Bank and Apiture. After approving a settlement agreement last May, a federal judge formally dismissed the suit against Live Oak and Apiture. The companies agreed to pay a combined $4.65 million, to be shared among 1,925 class members to settle their liabilities in the case. 
 
nCino, however, did not agree to settle, and – as Cook stated – will continue to defend itself in the case. Given the DOJ’s decision not to pursue antitrust allegations against the firm, however, the future of the suit is unclear.

Last May, McAlear's attorney, Anne Shaver, told the Business Journal that they had a "smoking gun" in the form of an email from an nCino recruiter that referenced a "gentleman’s agreement" whereby the companies agreed to not hire one another's employees. To prove a violation of antitrust law has occurred, a party doesn't have to show the existence of formal written policies, Shaver said at the time. 
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