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October 17, 2024

Antitrust Agency Insights: Developments at the U.S. Antitrust Enforcement Agencies — Third Quarter 2024

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Letter From the Editors

Despite FTC’s Non-Compete Ban Being Enjoined, Companies Still Must Be Mindful of Non-Compete Employment Provisions

For much of 2023 and 2024, the U.S. Federal Trade Commission’s (FTC or Commission) efforts to prohibit non-compete agreements between companies and workers garnered significant attention. Since the FTC’s final rule prohibiting many non-competes between companies and workers (the Final Rule or Non-Compete Ban)1  was finalized in April 2024, there have been multiple challenges to its enforceability — particularly as it relates to the ability of the FTC to make and enforce substantive rules regarding unfair methods of competition. In the last few months, federal courts have now weighed in. Most notably, on August 20, 2024, the U.S. District Court for the Northern District of Texas issued an order to enjoin the FTC from enforcing the Non-Compete Ban nationwide.2 While the FTC’s Non-Compete Ban has been enjoined, companies still must be mindful of their use of such provisions, even if the FTC is not successful on appeal due to the risk of enforcement actions by the FTC and the U.S. Department of Justice’s Antitrust Division (DOJ), as well as under existing state laws that ban some non-compete provisions.

FTC’s Efforts to Ban Virtually All Non-Compete Agreements

On April 23, 2024, the FTC voted 3-2 to issue a Final Rule providing that it is an unfair method of competition in violation of Section 5 of the FTC Act for employers to enter into non-compete agreements with most workers and to enforce most non-compete agreements.3 In support of the final proposed ban, FTC stated that non-competes tend to “negatively affect competitive conditions in labor markets,” “negatively affect competitive conditions in product and service markets,” and “lead to increased market concentration and higher prices for consumers.”4

However, in their dissenting statement issued on June 28, 2024, Commissioners Melissa Holyoak and Andrew Ferguson questioned the legality of the ban, and warned that the non-compete ban was “by far the most extraordinary assertion of authority in the Commission’s history.”5 They commented that the rulemaking “invalidates thirty million existing contracts,” “preempts the law of forty-six States,” and is beyond the agency’s authority. In their words: “Congress has not authorized us to issue it. The Constitution forbids it. And it violates the basic requirements of the Administrative Procedure Act.”6

Recent Court Decisions and Practical Effect on the Ban

Private plaintiffs took their challenges to court, echoing the dissent of Commissioners Holyoak and Ferguson. On April 23, 2024, the same day as the FTC announced its Non-Compete Ban, tax services company Ryan, LLC (Ryan) filed suit to challenge the ban’s legality.7 On July 3, 2024, the U.S. District Court for the Northern District of Texas stayed the FTC Final Rule’s effective date as to the plaintiffs in that case, and then on August 20, 2024, the court granted summary judgment to the plaintiffs, enjoining the FTC from implementing its ban on non-compete agreements nationwide.8

With her decision in Ryan, Judge Ada Brown has permanently enjoined the FTC’s Non-Compete Ban, holding that “by plain reading,” the FTC Act “does not expressly grant the Commission authority to promulgate substantive rules regarding unfair methods of competition.”9 Judge Brown emphasized that Section 18 of the FTC Act “limits the FTC’s ability to make rules dealing with unfair or deceptive practices — not unfair methods of competition”10  and that the “FTC lacks the authority to create substantive rules through this method [i.e., rulemaking].”11 Further, Judge Brown agreed with the plaintiffs that “the lack of a statutory penalty for violating rules promulgated under [the FTC Act] demonstrates its lack of substantive rulemaking power.”12

The FTC lost a similar challenge brought by real estate broker Properties of the Villages, Inc., when a federal district court in Florida similarly found the Non-Compete Ban could not be applied to the plaintiff.13 FTC “is considering an appeal” of the Ryan decision,14 and has already filed a notice of appeal in Properties of the Villages.15

In contrast to Ryan and Properties of the Villages, a federal district court in Pennsylvania held that the FTC did have the authority to enact the Non-Compete Ban. In response to a challenge by tree care business ATS Tree Services, LLC (ATS), Judge Kelley B. Hodge in the U.S. District Court for the Eastern District of Pennsylvania rejected ATS’ arguments that the FTC lacked the statutory authority for substantive rulemaking related to unfair methods of competition, noting that “nowhere in the text does Congress expressly limit the FTC’s enforcement mechanisms to adjudications; in fact, Congress does just the opposite by empowering the FTC to issue rules.”16 The ATS court’s initial denial issued on July 23, 2024 concluded that the FTC was properly exercising its rulemaking authority when it approved the Non-Compete Ban.17 After Ryan, the ATS court denied the plaintiff’s motion to stay the litigation, and ATS voluntarily dismissed its claims against the FTC on October 4, 2024.18

Takeaways

Even without the FTC’s Non-Compete Ban, existing federal and state laws still prohibit non-compete agreements that raise competition concerns. On the state front, according to Commissioners Melissa Holyoak and Andrew Ferguson, “all fifty States regulate noncompete agreements extensively.”19 Four states (California, Minnesota, North Dakota, and Oklahoma) have complete non-compete bans, and “[t]he majority of the remaining 46 states have statutory provisions or case law that ban or limit the enforceability of non-competes for workers in certain specified occupations.”20 Further, states are actively experimenting with noncompete regulation — “sometimes to expand the enforceability of noncompete agreements, other times to curtail it.”21 In addition, even if the FTC is not ultimately successful on appeal, it can still use its law enforcement authority under Section 5 of the FTC Act, and the DOJ can use Section 1 of the Sherman Act to challenge non-compete agreements on a case-by-case basis.22 Given the potential for such enforcement, companies should be mindful when crafting non-compete provisions in employment contracts to avoid antitrust scrutiny.

* * *

Note: Since the close of the Third Quarter, the FTC has issued its final rules revising the requirements for pre-merger notification filings pursuant to the Hart-Scott-Rodino Act. Read our analysis of this important development.

Additional Agency Updates

FTC Staffing Updates

  • FTC Employees Vote to Unionize. On September 30, 2024, the FTC staff voted by 415 to 25 to unionize under the National Treasury Employees Union (NTEU). The NTEU will represent about 820 FTC employees in Washington, D.C. and eight regional offices in New York, Cleveland, Chicago, Atlanta, Dallas, Los Angeles, San Francisco, and Seattle. According to the NTEU, the FTC staff workers reached out to NTEU about organizing in 2023, raising concerns including their access to telework and potential politicization of the civil service. Now represented by the NTEU, the FTC staff expect to begin negotiating important workplace policies soon.

FTC Cases and Proceedings

  • FTC’s Amazon Monopolization Suit Is Partly Dismissed. On September 30, 2024, the U.S. District Court for the Western District of Washington granted in part and denied in part Amazon’s motion to dismiss, giving the FTC and state attorneys general plaintiffs until October 31, 2024 to file another amended complaint in their case against Amazon. The order dismissed the claims based on state laws. The FTC and states alleged that Amazon maintains an illegal monopoly that uses a set of interlocking anticompetitive and unfair strategies that “stop rivals and sellers from lowering prices, degrade quality for shoppers, overcharge sellers, stifle innovation, and prevent rivals from fairly competing against Amazon.” The district court’s sealed order split the trial into two parts, including an upcoming bench trial scheduled for October 2026 that will address only Amazon’s liability.
  • FTC Order Bans Hess CEO from Chevron Board in Chevron-Hess Deal. On September 30, 2024, the FTC filed an administrative complaint along with a decision and order to resolve its antitrust concerns over Chevron Corporation’s acquisition of oil producer Hess Corporation (Hess). According to the FTC, Hess CEO John B. Hess communicated publicly and privately with past and current Secretaries General of the Organization of Petroleum Exporting Countries (OPEC) and an official from Saudi Arabia and encouraged OPEC to stabilize production and draw down inventories. The proposed consent order would prohibit Chevron from nominating, designating, or appointing Mr. Hess to the Chevron Board, and from allowing him to serve in an advisory or consulting capacity to, or as a representative of, Chevron or the Chevron Board. The Commission voted 3-2 to accept the consent agreement and issue the complaint and order for comment.
  • FTC Sues Prescription Drug Middlemen Under Section 5 of the FTC Act. On September 20, 2024, the FTC filed an administrative complaint against the three largest prescription drug benefit managers (PBMs) — Caremark Rx, Express Scripts, and OptumRx — and their affiliated group purchasing organizations (GPOs) — Zinc Health Services, Ascent Health Services, and Emisar Pharma Services — for allegedly violating Section 5 of the FTC Act’s prohibition against unfair methods of competition by “engaging in anticompetitive and unfair rebating practices that have artificially inflated the list price of insulin drugs.” The FTC alleged that the PBMs and GPOs “abused their economic power,” the PBMs “created a perverse drug rebate system that prioritizes high rebates from drug manufacturers,” and that their strategies “allowed the PBMs and GPOs to line their pockets while certain patients are forced to pay higher out-of-pocket costs for insulin medication.”
  • FTC Comments on WillScot’s Decision to Abandon Proposed $3.8 Billion Acquisition of McGrath RentCorp. In response to WillScot Holdings Corporation’s decision to abandon its proposed acquisition of McGrath RentCorp, both modular and portable storage rental companies, the FTC announced that it was “pleased that WillScot has announced that it is terminating its proposed deal to acquire McGrath RentCorp in the face of a potential Commission challenge.” The parties previously received second requests for additional information from the FTC.
  • GameStop CEO Ryan Cohen to Pay Nearly $1 Million Penalty to Settle Alleged Gun Jumping Violation. On September 18, 2024, the FTC announced that Ryan Cohen, managing partner of RC Ventures, LLC and chairman and CEO of GameStop Corp., will pay a $985,320 civil penalty to settle charges that his acquisition of Wells Fargo & Company shares violated the Hart-Scott-Rodino (HSR) Act. According to the FTC, Cohen’s acquisition exceeded HSR filing thresholds and was not exempt under the Investment-Only Exemption of the HSR Act because Cohen intended to influence Wells Fargo’s business decisions. The FTC voted unanimously to refer the matter to the DOJ, which filed the complaint and proposed stipulated order on the FTC’s behalf in the U.S. District Court for the District of Columbia. The proposed settlement, along with a competitive impact statement, has been published in the Federal Register for a 60-day comment period.
  • FTC Moves to Block Tempur Sealy International, Inc.’s (Tempur Sealy) Acquisition of Mattress Firm Group Inc. (Mattress Firm). On July 2, 2024, the FTC voted unanimously to sue to block Tempur Sealy’s proposed $4 billion acquisition of Mattress Firm. The Commission issued an administrative complaint and authorized a lawsuit in federal court to block this vertical merger. According to the FTC, the deal allegedly seeks to combine the world’s largest mattress supplier and manufacturer with the largest U.S. mattress retailer. The FTC asserts that the deal would “merge Tempur Sealy’s manufacturing and supply operations with Mattress Firm’s vast retail footprint, giving the combined company enormous power at multiple parts of the mattress supply chain.”

DOJ Cases and Proceedings

  • DOJ Sues Visa for Alleged Monopolization. On September 24, 2024, the DOJ filed a civil antitrust lawsuit in the U.S. District Court for the Southern District of New York against Visa for alleged anticompetitive conduct in debit network markets in violation of Sections 1 and 2 of the Sherman Act. The DOJ’s complaint alleged that Visa imposed “a web of exclusionary agreements on merchants and banks” to “penalize Visa’s customers who route transactions to a different debit network or alternative payment system,” and induced “would-be competitors to become partners instead of entering the market as competitors by offering generous monetary incentives and threatening punitive additional fees.” Visa has called the lawsuit “meritless.”
  • DOJ and State Attorneys General Sue RealPage for Antitrust Violations Related to Algorithmic Pricing. On August 23, 2024, the DOJ, along with the attorneys general of North Carolina, California, Colorado, Connecticut, Minnesota, Oregon, Tennessee, and Washington, filed a civil antitrust lawsuit against RealPage Inc. for its alleged unlawful scheme to decrease competition among landlords in apartment pricing and to monopolize the market for commercial revenue management software that landlords use to price apartments in violation of Sections 1 and 2 of the Sherman Act. Unlike some private cases, the DOJ and state attorneys general case alleges a violation under the rule of reason and does not assert that the use of algorithmic pricing is illegal per se. According to the DOJ and the states, RealPage’s alleged conduct deprives renters of the benefits of competition on apartment leasing terms. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina.
  • DOJ Settles Gun Jumping Claim related to Legends Hospitality’s Acquisition of ASM Global. On August 5, 2024, the DOJ filed a civil lawsuit and announced a proposed settlement with Legends Hospitality Parent Holdings LLC (Legends) for allegedly engaging in “illegal premerger coordination in connection with its proposed acquisition of ASM Global Inc. (ASM) by exercising operational control over aspects of ASM during the HSR waiting period.” The proposed settlement requires Legends to pay a $3.5 million penalty, report to an outside compliance monitor, and commit to four years of antitrust training and compliance certifications.
  • Ten Additional States Join Justice Department’s Suit Against Live Nation-Ticketmaster for Allegedly Monopolizing Markets Across the Live Concert Industry. On August 19, 2024, the attorneys general of 10 states (Indiana, Iowa, Kansas, Louisiana, Mississippi, Nebraska, New Mexico, South Dakota, Utah, and Vermont) joined a civil antitrust lawsuit filed by the DOJ, 29 other states, and the District of Columbia against Live Nation-Ticketmaster for monopolization and other unlawful conduct in violation of Sections 1 and 2 of the Sherman Act. The plaintiffs’ case alleges that Live Nation monopolized the live entertainment industry through long-term, exclusive contracts and threats of retaliation against rivals and concert venues.
  • Deputy Assistant Attorney General Michael Kades Statement After Airline Group IAG Abandons Acquisition of Air Europa. On August 2, 2024, the DOJ issued a statement from Deputy Assistant Attorney General (DAAG) Michael Kades after International Consolidated Airlines Group S.A. (IAG) announced that it would abandon its proposed acquisition of sole control of Air Europa Holding S.L. DAAG Kades stated that the DOJ “is committed to protecting competition in the airlines industry” and thanked the European Commission for “close and constructive collaboration.”
  • Assistant Attorney General Jonathan Kanter Comments on UnitedHealth Group’s Abandonment of Two Acquisitions Following Antitrust Division Scrutiny. On July 25, 2024, Assistant Attorney General Kanter released a statement after UnitedHealth Group abandoned its proposed acquisitions of Stewardship Health Inc. and a related company following scrutiny from the Antitrust Division. Assistant Attorney General Kanter commented that the proposed transactions were “among UnitedHealth Group’s latest proposed provider-related acquisitions, and they raised questions about quality of care, cost of care, and working conditions for doctors, nurses and other healthcare providers.”
  • Former Interim Presidents of Puerto Rican Steel Distributor Pleads Guilty to Eight-Year Price-Fixing Conspiracy. On August 7 and 30, 2024, two current and former executives of a steel distributor in Carolina, Puerto Rico, pleaded guilty to conspiring with competitors to fix prices for sales of reinforcing bar, or rebar. On August 7, Juan Carlos Aponte Tolentino, of Bayamon, Puerto Rico, interim president of a steel distributor in Puerto Rico, admitted that more than $100 million in sales by his company were affected by the conspiracy. On August 30, Edgardo Sola Colon, of Toa Alta, Puerto Rico, the president of a steel distributor in Puerto Rico and a former president of another steel distributor in Puerto Rico, admitted that more than $50 million in sales by his companies were affected by the conspiracy. Both pleaded guilty to charges that between 2015 and 2022, including the period of reconstruction following Hurricanes Irma and Maria in September 2017, they conspired with competing companies and individuals to suppress and eliminate competition by fixing prices for steel products, including rebar, which were distributed to hardware stores, building contractors, and other businesses and individuals in Puerto Rico, resulting in substantial profits to the conspirators.
  • Michigan-Based Company Sentenced to Pay $6.5 Million Criminal Fine for Bid Rigging in Michigan Asphalt Industry. On August 15, 2024, Pontiac, Michigan-based Asphalt Specialists LLC pleaded guilty for its conduct on January 30, 2024. According to court documents and proceedings, the company allegedly participated in a conspiracy with Al’s Asphalt Paving Company Inc. and its employees from March 2013 through November 2018. The company also participated in a separate conspiracy with F. Allied Construction Company Inc. and its employees from July 2017 through May 2021.
  • Company, Executive, and Employee Indicted for $100 Million Price-Fixing Conspiracy Involving Publicly Funded Infrastructure Projects. On August 8, 2024, a federal grand jury in Oklahoma City, Oklahoma returned an indictment charging Sioux Erosion Control, Inc., its vice president, and another employee with a price-fixing conspiracy targeting over $100 million in publicly-funded transportation construction contracts across Oklahoma.
  • Two Executives Convicted in Antitrust Conspiracy to Fix Prices, Rig Bids, and Allocate Markets for Concrete. On July 11, 2024, a jury convicted Gregory and David Melton in the U.S. District Court in Savannah, Georgia for their role in a conspiracy to fix prices, rig bids, and allocate markets for sales of ready-mix concrete in Georgia and South Carolina. The conspiracy began as early as 2010 and continued until about July 2016, and involved allegedly coordinating price-increase letters to customers, allocating specific jobs in the coastal Georgia area, and submitting bids to customers at collusive and noncompetitive prices.

Joint FTC and DOJ Policy

  • DOJ and FTC Host First Meeting of Strike Force on Unfair and Illegal Pricing. On August 1, 2024, the two agencies virtually cohosted the first public meeting of the Strike Force on Unfair and Illegal Pricing (Strike Force) to discuss Strike Force enforcement actions taken to lower prices for Americans.

FTC Policy

  • FTC Supports USDA’s Efforts to Protect Farmers, Growers, Ranchers, and Consumers From Unlawful Conduct by Dominant Meat Processors. On September 11, 2024, the FTC submitted a comment supporting a U.S. Department of Agriculture (USDA) proposed rule to protect against unfair practices by dominant meat processors. The USDA’s proposed rule seeks to clarify the scope of what constitutes unfair practices under the Packers and Stockyards Act (PSA), which assures fair competition and fair trade practices to protect farmers, ranchers, growers, and consumers. The FTC applauded the USDA’s rule because it “correctly recognizes that, based on the PSA’s plain text and its relationship to the FTC Act, competitive injury is not required for a PSA violation.”
  • FTC Staff Opposes Proposed Indiana Hospital Merger. On September 5, 2024, the FTC staff submitted a comment urging the Indiana Department of Health to deny an application to allow the combination of Union Hospital, Inc. and Terre Haute Regional Hospital, L.P. The FTC stated that the deal “would likely impose higher costs and could lead to worse healthcare outcomes for Indiana patients, as well as lower wage growth for hospital workers,” and particularly, “the merged entity would have a combined share of nearly 74% of all commercially insured inpatient hospital services” in Vigo County, Indiana. The FTC considered it “doubtful that the COPA regulatory conditions imposed by the Indiana Department of Health would effectively mitigate all of the potential anticompetitive harms to patients in the Terre Haute area.”
  • FTC Issues Orders to Eight Companies Seeking Information on Surveillance Pricing. On July 23, 2024, the FTC issued orders to eight companies offering surveillance pricing products and services that incorporate data about consumers’ characteristics and behavior. The orders seek information about the potential impact these practices have on privacy, competition, and consumer protection. The orders are aimed at helping the FTC better understand products that claim to use advanced algorithms, artificial intelligence, and other technologies, along with personal information about consumers — such as their location, demographics, credit history, and browsing or shopping history — to categorize individuals and set a targeted price for a product or service. The study is aimed at helping the FTC better understand how surveillance pricing is affecting consumers, especially when the pricing is based on surveillance of an individual’s personal characteristics and behavior. The Commission voted 5-0 to issue the 6(b) orders to the eight companies. Commissioners Melissa Holyoak and Andrew N. Ferguson each issued a concurring statement.
  • FTC Submits Comment Supporting Proposed USPTO Terminal Disclaimer Rule. On July 10, 2024, the FTC submitted a comment supporting a proposed U.S. Patent and Trademark Office (USPTO) rule regarding new requirements associated with patent terminal disclaimer practice to address practices that can lead to patent system abuse. According to the FTC, the proposed USPTO rule “seeks to promote innovation and competition by preventing practices that can facilitate the creation of overlapping patent rights known as patent thickets, which can block or delay competition.”
  • Chair Khan Supports California’s Efforts to Scrutinize Healthcare Transactions. On July 2, 2024, FTC Chair Lina Khan issued a letter to support California’s efforts to more closely monitor mergers and acquisitions of healthcare facilities with private equity (PE) firms and to permit or block such deals. Chair Khan commented that she has “a growing concern” over PE firms’ acquisitions of healthcare service providers (outpatient clinics, nursing homes, and physician practices) and “states’ oversight can provide a crucial supplement” to the federal antitrust agencies’ proposed changes to the HSR form that “aim to improve visibility about filing parties’ serial acquisitions or roll-up strategies.”

DOJ Policy

  • DOJ Withdraws From 1995 Bank Merger Guidelines. On September 17, 2024, the DOJ announced its withdrawal from the 1995 Bank Merger Guidelines and emphasized that the 2023 Merger Guidelines remain its sole and authoritative statement across all industries. The DOJ also released commentary explaining the application of the 2023 Merger Guidelines in banking. This commentary identifies competition issues that may commonly occur in bank mergers and outlines which guidelines best inform analysis of those issues.

Inter-Agency Initiatives

  • FTC Withdraws From Its Recent MOU With DOJ, Department of Labor, and National Labor Relations Board. On August 28, 2024, the FTC, the DOJ, the U.S. Department of Labor, and the National Labor Relations Board signed an interagency memorandum of understanding (MOU) to further communication and coordination between the agencies to protect American workers and promote fair competition in labor markets. However, on September 27, 2024, just one month later, the FTC notified the other parties that it was withdrawing from the agreement. The FTC did not provide a reason for the withdrawal and simply stated that the agency “will continue to closely scrutinize all issues related to mergers, including potential impacts on labor, in accordance with its merger guidelines.”
  • DOJ, FTC, and Japan Fair Trade Commission Commemorate the 25th Anniversary of U.S.-Japan Competition Cooperation Agreement. On September 10, 2024, Assistant Attorney General Jonathan Kanter of the DOJ’s Antitrust Division, Commissioner Alvaro Bedoya of the FTC, and Commissioner Reiko Aoki of the Japan Fair Trade Commission met in Washington, D.C. to mark the 25th anniversary of the signing of an agreement between the United States and Japan concerning cooperation on anticompetitive issues.
  • Leaders of DOJ, FTC, European Commission, and U.K. Competition and Markets Authority Issue Joint Statement on AI Competition. On July 23, 2024, DOJ Assistant Attorney General Jonathan Kanter, FTC Chair Lina Khan, Executive Vice President Margrethe Vestager of the European Commission, and Chief Executive Sarah Cardell of the U.K. Competition and Markets Authority issued a joint statement on competition in generative AI foundation models and AI products. Through this joint statement, the four antitrust enforcers pledged to use their available powers to promote effective competition in AI to ensure the public reaps the full benefits of these technologies.

FTC Speeches

  • Chair Khan Testifies Before House Energy and Commerce Subcommittee on Innovation, Data, and Commerce. On July 9, 2024, FTC Chair Lina Khan testified before the House Energy and Commerce Subcommittee on Innovation, Data, and Commerce on the agency’s fiscal year 2025 budget and work to promote competition and protect consumers. In addition to the FTC’s work on merger enforcement, she highlighted the FTC’s recent rule to ban noncompete clauses in employment contracts, which the Commission estimates affect one in five U.S. workers, and shared that the vast majority of public comments the FTC received were in support of the agency’s rule.

DOJ Speeches

  • Assistant Attorney General Kanter Delivers Remarks for the Fordham Competition Law Institute’s 51st Annual Conference on International Antitrust Law and Policy. On September 12, 2024, the DOJ’s Assistant Attorney General Jonathan Kanter delivered remarks discussing three topics: (1) the role of expertise as distinct from advocacy; (2) how corporate money is threatening expertise in competition policy; and (3) how international antitrust and competition law enforcers and policy makers are uniquely equipped to lead the way toward developing solutions to address this crisis.
  • Assistant Attorney General Jonathan Kanter Delivers Remarks at the 2024 Georgetown Law Global Antitrust Enforcement Symposium. On September 10, 2024, the DOJ’s Assistant Attorney General Jonathan Kanter delivered remarks discussing “how the antitrust laws are protecting the types of freedoms that FDR talked about,” namely “the freedoms of economic opportunity and choice to the American people.” Kanter highlighted “two key developments” at the DOJ’s Antitrust Division, which are the increased litigation capabilities and expanded use of expertise, as well as the “sound application of statutory text and binding precedent” as reflected by the DOJ’s recent court successes.
  • Deputy Assistant Attorney General Elias Delivers Remarks at United Nations (UN) Trade and Development’s Intergovernmental Group of Experts on Competition Law and Policy. On July 5, 2024, DOJ’s Deputy Assistant Attorney General John Elias spoke at the UN’s 22nd session of the Intergovernmental Group of Experts on Competition Law and Policy. Deputy Assistant Attorney General Elias spoke about the DOJ’s merger enforcement and the 2023 Merger Guidelines issued jointly by the DOJ and the FTC. He highlighted “important considerations” in developing and applying the 2023 Merger Guidelines.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This Newsletter is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. Non-Compete Clause Rule, 89 Fed. Reg. 38,342 (May 7, 2024).

  2. See Memorandum Opinion and Order, Ryan LLC v. Federal Trade Commission, No. 3:24-cv-00986-E (N.D. Tex. Aug. 20, 2024).

  3. Read the Press Release.

  4. Id.

  5. Read the Dissenting Statement, at 1.

  6. Id.

  7. See Ryan LLC v. Federal Trade Commission, No. 3:24-cv-00986-E (N.D. Tex. 2024). In addition to the Ryan case, on April 24, 2024, the U.S. Chamber of Commerce sued in the Eastern District of Texas, including a motion for stay of the effective date of the FTC Rule and for preliminary injunction. See Chamber of Commerce of the United States of America, et al. v. Federal Trade Commission, Case No. 6:24-cv-00148 (E.D. Tex. 2024). On April 25, 2025, ATS Tree Services, LLC sought similar relief in the Eastern District of Pennsylvania. See ATS Tree Services, LLC v. Federal Trade Commission, et al., Case No. 2:24-cv-01743 (E.D. Pa. 2024).

  8. See Memorandum Opinion and Order, Ryan LLC v. Federal Trade Commission, No. 3:24-cv-00986-E (N.D. Tex. Aug. 20, 2024).

  9. Id. at 16.

  10. Id at 16-17.

  11. Id. at 17.

  12. Id.

  13. See Properties of the Villages, Inc. v. Federal Trade Commission, No. 5:24-cv-00316 (M.D. Fla. 2024) (holding that the FTC’s noncompete ban was likely invalid and blocking it from being applied to a real estate developer).

  14. Read the Press Release.

  15. See FTC Notice of Appeal, Properties of the Villages, Inc. v. Federal Trade Commission, No. 5:24-cv-00316 (M.D. Fla. Sept. 24, 2024).

  16. See Memorandum, ATS Tree Services, LLC v. Federal Trade Commission, et al., Case No. 2:24-cv-01743 (E.D. Pa. Jul. 23, 2024).

  17. Id. at 38.

  18. See Plaintiff’s Notice of Voluntary Dismissal, ATS Tree Services, LLC v. Federal Trade Commission, et al., Case No. 2:24-cv-01743 (E.D. Pa. Oct. 4, 2024).

  19. Read the Dissenting Statement, at 4.

  20. Final Rule, 89 Fed. Reg. at 38,465.

  21. Read the Dissenting Statement, at 5 (citing comment by West Virginia and 17 other states).

  22. Read the Press Release. See also FTC consent decree involving non-competes in In Re Anchor Glass Container Corporation, et al. and in In Re O-I Glass, Inc.

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