The FTC’s and DOJ’s December 6 and 7 Virtual Public Workshop Exploring Competition in Labor Markets is almost here, and the agenda has been released.
While it’s quite possible that noncompetes (and other restrictive covenants) will be discussed at any point (as happened in last year’s workshop), the following panels appear to be the most likely segments to cover them:
- 10:00-10:30 (Monday): Welcome and Introduction by Jonathan Kanter (Department of Justice) and Lina Khan (Federal Trade Commission).
- 1:00-2:00 (Monday): Labor Perspective on Competition Issues.
This appears to be focused on labor union issues. Although noncompetes are almost never part of collective bargaining agreements, unions have nevertheless sometimes offered opinions on them. Accordingly, although the panel may not wind up touching on noncompetes, based on past practice, I expect we’ll hear something.
- 2:10-2:15 (Monday): Videos from the Public.
I have no idea what videos may have been submitted other than one that I submitted. If they play my submission, my apologies in advance for the fast talking and quick cuts in the video, but videos were limited to one minute and there is a lot to say — and a lot left to say!
- 2:15-3:30 (Monday): Contractual Restraints that Can Impede Worker Mobility.
This will be the key discussion on noncompetes.
- 12:45-1:00 (Tuesday): Afternoon Keynote by Tim Wu, Special Assistant to the President.
This will likely cover noncompetes and no-poach agreements (among other things), given President Biden’s July 9 Executive Order.
- 1:00-2:00 (Tuesday): Building a “Whole-of-Government” Competition Policy.
Given the prior workshop, President Biden’s executive order, and the FTC’s draft strategic plan, I would be surprised if we don’t see noncompetes discussed as part of this.
- 2:15-3:15 (Tuesday): Fireside Chat: Worker Bargaining and the Antitrust Laws – 19th Century through the Present.
To the extent that regulation of restrictive covenants will be handled by the FTC, it will presumably be based on enforcement of antitrust laws. (This approach would be consistent with FTC Chair Lina Khan’s and Rohit Chopra’s article, The Case for “Unfair Methods of Competition” Rulemaking, University of Chicago Law Review: Vol. 87 : Iss. 2, Article 4.)
- 4:30 (Tuesday): Closing Remarks by Karina Lubell, U.S. Department of Justice.
I’m looking forward to hearing the discussion, and will of course, provide an update after it concludes.
In the meantime, one other development is worthwhile noting: Rohit Chopra is no longer an FTC Commissioner. In October, he moved to become the Director of the Consumer Financial Protection Bureau. The significance is that he had been in favor of the FTC’s regulation of noncompetes, and as a consequence, the FTC no longer appears to have a majority favoring FTC regulation of noncompetes (at this time, at least). That may change soon. Just this week, the Senate Commerce Committee approved President Biden’s nomination of Alvaro Bedoya. Mr. Bedoya is a staunch privacy advocate, but his view on noncompetes (putting aside the question of the FTC’s authority to regulate them) is not well-known. His appointment now moves to the full Senate.
Stay tuned for that too.