In new research, Norman Bishara and Lorenzo Luisetto analyze the nature and proliferation of state legislative activity to regulate noncompete agreements since 2009. In the absence of a federal rule, these developments represent a promising step toward curbing the abuse of noncompete agreements.
After a lull in executive branch attention during the first Trump Administration, employee noncompete agreements became the subject of campaign initiatives from then-presidential candidate Joe Biden. Upon taking office, Biden issued an “Executive Order on Promoting Competition in the American Economy” that, among other initiatives, directed the Federal Trade Commission under Chair Lina Khan to investigate labor-related issues. Subsequently, the FTC initiated rulemaking related to curbing or banning employee noncompetes and, after an extended notice and comment period, approved a final ban on April 23, 2024. However, a global tax services firm and several industry groups, including the United States Chamber of Commerce, challenged the rule in Ryan v. Federal Trade Commission, in part asserting FTC’s lack of authority to enact the ban. On August 20, 2024, the court issued a summary judgment, prohibiting the FTC from enforcing the rule under a court order.
Although the current FTC chairman, Andrew Ferguson, voted against the 2024 rule while serving as a commissioner, in a March 2025 policy directive memorandum he acknowledged that “[s]adly, deceptive, unfair, and anticompetitive...
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