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Brette Tannenbaum and Megan Gao Discuss Criticisms and Challenges of the FTC’s Non-Compete Clause Rule

March 15, 2023

In a Daily Journal article published on March 15, litigation partner Brette Tannenbaum and associate Megan Gao discuss the FTC’s proposed Non-Compete Clause Rule, a sweeping ban on nearly all U.S. employer-worker non-compete agreements. In “FTC Faces Criticism of Non-Compete Clause Rule, Prepares for Legal Challenges,” Brette and Megan cover the FTC’s continued defense of the proposed rule in its current form despite the legal challenges it is likely to draw, such as whether the FTC can make rules to regulate business practices it deems to be “unfair modes of competition,” whether the proposed rule violates the major questions doctrine, and whether the proposed rule is an impermissible delegation of legislative authority.

“Regardless of the bases for any legal challenge, the FTC is likely gearing up for battle,” Brette and Megan write. “FTC Commissioner Rebecca Kelly Slaughter recently said that she expects to face lawsuits challenging the Non-Compete Clause Rule and the FTC ‘will be well prepared to argue why we think we are doing the right thing under the law and with the jurisprudence that we have.’”

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