Insights

On September 5, 2025, the Federal Trade Commission (“FTC”) withdrew its appeals of decisions issued by Texas and Florida federal district courts, which enjoined the FTC from enforcing a nationwide rule banning almost all noncompete employment agreements. Companies, however, should not read this decision to mean that their noncompete agreements will no longer be subjected to antitrust scrutiny by federal enforcers. In a statement joined by Commissioner Melissa Holyoak, Chairman Andrew Ferguson stressed that the FTC “will continue to enforce the antitrust laws aggressively against noncompete agreements” and warned that “firms in industries plagued by thickets of noncompete agreements will receive [in the coming days] warning letters from me, urging them to consider abandoning those agreements as the Commission prepares investigations and enforcement actions.”

In a landmark verdict on April 14, 2025, the U.S. Department of Justice Antitrust Division notched its first-ever jury trial conviction for criminal wage-fixing under the Sherman Act in United States v. Eduardo Lopez in the District of Nevada. A home health care staffing executive, Eduardo (“Eddie”) Lopez, was found guilty of (1) conspiring with several competing home healthcare staffing agencies to fix the wages of home health nurses in the Las Vegas area, and (2) defrauding the unwitting buyer of his agency by concealing the then-ongoing antitrust investigation into nurse wage and hiring practices. It is worth noting, however, that while the Lopez conviction is a significant milestone for the DOJ’s campaign into labor antitrust violations, wage-fixing cases may be more straightforward to prosecute than no-poach agreements, where the DOJ still has not prevailed before a jury. This victory nonetheless affirms the DOJ’s ability to criminally prosecute labor market collusion as a criminal offense after numerous failed attempts, signaling the prudence of further caution for companies and individuals to mitigate risk in labor antitrust markets.

Four days before the change in administration and in the wake of several high-profile trial losses in cases involving alleged “no-poach” and wage-fixing agreements, the Federal Trade Commission (FTC) and the Department of Justice, Antitrust Division (DOJ) jointly approved new guidelines, Antitrust Guidelines for Business Activities Affecting Workers” (the “2025 Guidelines” or “Guidelines”), that explain how antitrust enforcers have identified and assessed whether an agreement or business practice affecting workers may violate the antitrust laws.  The 2025 Guidelines were voted out at the FTC on a split 3-2 vote along party lines, with a brief but scathing dissenting statement from the Republican commissioners (including incoming FTC Chair Andrew Ferguson) that raises serious doubts as to how well the Guidelines reflect the approach the agencies will take during the next four years.  On the eve of the incoming Trump Administration, the 2025 Guidelines replaced the previous joint DOJ and FTC antitrust guidelines regarding employment practices that were issued in 2016, “Antitrust Guidance for Human Resource Professionals” (the “2016 Guidelines”), during the tail-end of the Obama Administration.

Plaintiffs battling the Federal Trade Commission’s ban on non-compete clauses in employment agreements notched a significant victory recently.  On August 20, 2024, U.S. District for the Northern District of Texas Judge Ada Brown permanently blocked the agency’s action in Ryan LLC v. Federal Trade Commission, concluding the rulemaking exceeded the agency’s statutory authority.  Judge Brown had previously granted a preliminary injunction that limited its effect to the plaintiffs in the case.  Yesterday’s ruling, however, which granted the plaintiffs’ summary judgment motion, permanently blocks the ban nationwide.

The Federal Trade Commission (“FTC”) is now batting .500 in its effort to defend its rule banning most employee non-compete agreements.  On July 23, 2024, Judge Kelley Hodge of the U.S. District Court for the Eastern District of Pennsylvania denied the request for a preliminary injunction to block that rule from going into effect pending a full trial.  This decision is at odds with the decision issued earlier this month by Judge Ada Brown of the U.S. District Court for the Northern District of Texas, which found that the FTC had exceeded its statutory authority and issued a limited preliminary injunction that prevented the rule from becoming effective as to the plaintiffs in that case. 

On July 3, 2024, Judge Ada Brown of the U.S. District Court for the Northern District of Texas temporarily blocked the Federal Trade Commission (“FTC”) from enforcing its recent rule banning virtually all employee non-compete agreements in the United States.  In its 33-page opinion, the court ruled that the plaintiffs are likely to succeed on the merits of their claims that the FTC lacks statutory authority to issue its non-compete ban via rulemaking and that the FTC’s decision to ban non-competes broadly was arbitrary and capricious. However, in a surprise twist, the court declined to grant nationwide preliminary relief, opting instead to limit its injunction to the specific plaintiffs in the action.  The court indicated that it intends to issue a final ruling by August 30, 2024—days before the non-compete ban is scheduled to take effect on September 4.

On April 23, 2024, the Federal Trade Commission (“FTC” or “the Agency”) voted 3-2 along partisan lines in a special public meeting to adopt the “Non-Compete Clause Rule” (the “Final Rule”), which will prohibit most employee non-competes with retroactive effect, except existing non-compete provisions of “senior executives.”  The Final Rule will also ban future non-compete agreements, including for senior executives, with limited exceptions.  The rule will not become effective until 120 days after publication in the Federal Register, and covered employers will be required to comply with the Final Rule by that effective date, which could come as early as August this year.  By the FTC’s own estimate, this ban could affect up to one-in-five American workers.

In the latest sign that federal enforcers remain focused on increasing antitrust enforcement, last Thursday, the Justice Department (DOJ), Federal Trade Commission (FTC) and the Department of Health and Human Services (HHS) revealed an online portal, HealthyCompetition.gov, to encourage the public to submit reports on potential anticompetitive and monopolistic conduct in the healthcare sector.  The initiative seeks to address concerns that such behavior may affect healthcare affordability and quality, and employee wages. 

On March 30, 2021, the Federal Trade Commission announced that it voted in unanimous, bipartisan fashion (4-0) to file a complaint to block Illumina’s proposed acquisition of Grail. Illumina sells next-generation gene sequencing (NGS) equipment and consumables, while Grail is developing a multi-cancer early detection test that uses Illumina’s NGS platform. The FTC alleges a vertical theory of harm whereby the merger would give Illumina both the incentive and ability to disadvantage Grail’s multi-cancer testing competitors by raising their costs for, or by foreclosing them from, accessing Illumina’s must-have NGS technology. This is the first time in recent memory that the FTC is challenging a vertical merger in court; it represents the FTC’s first challenge under newly issued Vertical Merger Guidelines; and it is the first suit filed under Acting FTC Chair Rebecca Slaughter—all of which demonstrates that the FTC is likely to take a more aggressive approach to vertical merger enforcement for at least the next four years.

In what it has coined “a poster child for divestiture,” the Fourth Circuit affirmed a trial court’s decision to unwind a merger after a private plaintiff, which was both a customer and competitor of the merged firm, sued four years post-consummation and after federal enforcers had twice cleared the deal.  The ruling sets groundbreaking new precedent for competitors and customers to break up acquisitions years after completion, and serves as a cautionary tale to merging parties that agency merger clearance does not immunize anticompetitive deals from private antitrust actions that, if successful, will expose firms to hefty treble damages and once-rare structural remedies like divestiture.

On August 20, 2020, the U.S. Department of Justice Antitrust Division announced three organizational changes that, if fully implemented, could significantly influence the manner in which it conducts its civil investigations and enforces its judgments and consent decrees. Specifically, the Antitrust Division announced: (i) the creation of an Office of Decree Enforcement and Compliance, which will be responsible for investigating and prosecuting both merger and non-merger judgment and consent decree violations; (ii) the establishment of a permanent Civil Conduct Task Force, which will be responsible for investigating and prosecuting non-merger-related anticompetitive business practices; and (iii) the reallocation of certain industries and related commodities among its civil Sections.