Erik W. Weibust and Stuart M. Gerson, Members of the Firm in the Boston and Washington, DC, offices, respectively, co-authored an article in Law360, titled “FTC Authority to Ban Noncompetes Shaky After EPA Ruling.” (Read the full version – subscription required.)

Following is an excerpt (see below to download the full article in PDF format):

Shortly after his inauguration in 2021, President Joe Biden issued Executive Order No. 14036 on promoting competition in the American economy, which encouraged the Federal Trade Commission to consider exercising its

statutory rulemaking authority under the Federal Trade Commission Act to curtail what the administration and its advocates believe is the widespread use of non-compete clauses and other clauses or agreements that might unfairly limit worker mobility.

Nothing of substance has yet resulted from this executive order, although the FTC ostensibly is considering how best to proceed. However, a recent U.S. Supreme Court decision may have made that task far more difficult, providing a potentially viable argument that the FTC lacks the authority to regulate — i.e., ban — noncompetes.

Even before the executive order, the FTC was studying this matter in recognition that the question of its authority was an open one.

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