Thursday is approaching!
As mentioned in our last post on the subject, the FTC will be holding a hearing on January 9, 2020 (at 8:30 a.m. at its Headquarters Building, 600 Pennsylvania Avenue, NW, Washington, DC) “to examine whether there is a sufficient legal basis and empirical economic support to promulgate a Commission Rule that would restrict the use of non-compete clauses in employer-employee employment contracts.”
We now have more details.
The title of the workshop is “Non-Competes in the Workplace: Examining Antitrust and Consumer Protection Issues.”
Here is the agenda:
8:30 am: Registration
8:30-8:35 am: Welcome and Introductory Remarks
Speaker: Bilal Sayyed, Director, Federal Trade Commission, Office of Policy Planning
8:35-9:05 am: Statutory and Judicial Treatment of Non-Compete Clauses
Speaker: Orly Lobel, University of San Diego School of Law
9:05-9:20 am: Applying State and Federal UDAP Principles to Non-Compete Clauses
Speaker: William E. Kovacic, George Washington University Law School
9:20-9:35 am: Break
9:35-11:05 am: Panel 1: FTC Authority to Address Non-Compete Clauses
Jane Flanagan, Chicago-Kent College of Law at the Illinois Institute of Technology
William E. Kovacic, George Washington University Law School
Orly Lobel, University of San Diego School of Law
Eric A. Posner, University of Chicago Law School
Damon A. Silvers, Director of Policy and Special Counsel, AFL-CIO
Randy M. Stutz, Vice President of Legal Advocacy, American Antitrust Institute
11:05-11:20 am: Break
11:20-11:30 am: Remarks
Speaker: Rebecca Kelly Slaughter, Commissioner, Federal Trade Commission
11:30-12:00 pm: Effects of Non-Compete Clauses: Economic Literature Review
Speaker: Ryan Nunn, Fellow, Hamilton Project, Brookings Institution
12:00-1:00 pm: Lunch Break (on your own)
1:00-2:30 pm: Panel 2: Effects of Non-Compete Clauses: Analysis of the Current Economic Literature and Topics for Future Research
Kurt J. Lavetti, Ohio State University
Ryan Nunn, Fellow, Hamilton Project, Brookings Institution
Evan Starr, Robert H. Smith School of Business, University of Maryland
Ryan Williams, University of Arizona
John McAdams, Economist, Federal Trade Commission, Bureau of Economics
2:30-2:45 pm: Break
2:45-2:55 pm: Remarks
Speaker: Noah Joshua Phillips, Commissioner, Federal Trade Commission
2:55-3:25 pm: Federal Rulemaking Process: Key Principles and Considerations
Speaker: Aaron L. Nielson, Brigham Young University Law School
3:25-5:25 pm: Panel 3: Should the FTC Initiate a Rulemaking Regarding Non-Compete Clauses?
Sally Katzen, New York University School of Law
Kristen C. Limarzi, Partner, Gibson, Dunn & Crutcher
Aaron L. Nielson, Brigham Young University Law School
Richard J. Pierce, Jr., George Washington University Law School
Howard Shelanski, Georgetown University Law Center
5:25-5:30 pm: Closing Remarks
Speaker: Sarah Mackey, Acting Deputy Director, Federal Trade Commission, Office of Policy Planning
The speakers bios are all available here.
The anticipated takeaway:
While there is certainly a range of viewpoints (from moderate to extreme) among the panelists, it seems safe to say that they are largely lined up on one side of the debate. We can therefore anticipate a focus on theory, preliminary research, and some headline-making abuses of noncompetes, with little significant discussion of the benefits or real world application of noncompetes. However, given the positions previously advanced by some of the panelists and the thoughtful comments that have been made by representatives of the FTC, I remain fully optimistic that, in the end, if the FTC finds that rulemaking is permissible and appropriate, it will take a moderate approach, focused on preventing abuses.
A additional few things to note:
If you can’t make it, the good news is that it will be “live webcast.” (A link will be available on the FTC’s website that morning.)
As a reminder, the FTC has provided the following outline:
To aid our analysis of these issues, FTC staff is seeking public comment from interested parties on the following questions:
- What impact do non-compete clauses have on labor market participants?
- What are the business justifications for non-compete clauses?
- Is state law insufficient for addressing harms associated with non-compete clauses?
- Do employers enforce non-compete agreements contained in standard employment contracts? How routine is such enforcement?
- Are there situations in which non-compete clauses constitute an unfair method of competition (UMC) or an unfair or deceptive act or practice (UDAP)? How prevalent are these situations?
- Should the FTC consider using its rulemaking authority to address the potential harms of non-compete clauses, applying either UMC or UDAP principles?* What “gap” in existing state or federal law or regulation might such a rule fill? What should be the scope and terms of such a rule? What is the statutory authority for the Commission to promulgate such a rule?
- Should the FTC consider using other tools besides rulemaking to address the potential harms of non-compete clauses, such as law enforcement, advocacy, or consumer/industry guidance?
- What additional economic research should be undertaken to evaluate the net effect of non-compete agreements? Should additional economic research on the empirical effects of non-compete agreements focus on a subset of the employee population? If so, which subset?
FTC staff welcomes comment on these and related questions and issues.
Any comments are due by February 10. I will be submitting comments, and welcome anyone interested in discussing my comments to contact me by email.
In the meantime, see you on Thursday!
*UMC is Unfair Methods of Competition; UDAP is Unfair and Deceptive Acts and Practices.