The FTC’s “public forum” on its proposed noncompete ban is Thursday – but there are developments

This is a reminder that on Thursday (February 16, 2023) from noon to 3:00 PM ET, the FTC will be holding a “public forum” on its proposed noncompete ban. (More details are available here: FTC to hold a “public forum” on its proposed noncompete ban.)

I had scheduled this reminder to post tomorrow, but have advanced it to now because of two very new and important developments.

Commissioner Wilson Resigns with a Very Public, Scathing Rebuke of Chair Khan  

First, Commissioner Christine Wilson, author of the “great dissent” (challenging the authority for, support for, and wisdom of the proposed noncompete ban) resigned just hours ago.

This follows the earlier resignation of the only other Republican Commissioner, Noah Phillips, and comes on the heels of yesterday’s re-nomination – subject to Senate confirmation – of Commissioner Rebecca Slaughter (a Democratic Commissioner).

In her statement released to the Wall Street Journal, Commissioner Wilson stated (in part):

Much ink has been spilled about Lina Khan’s attempts to remake federal antitrust law as chairman of the Federal Trade Commission. Less has been said about her disregard for the rule of law and due process and the way senior FTC officials enable her. I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing, and I refuse to give their endeavor any further hint of legitimacy by remaining.

* * *

I am not alone in harboring concerns about the honesty and integrity of Ms. Khan and her senior FTC leadership. Hundreds of FTC employees respond annually to the Federal Employee Viewpoint Survey. In 2020, the last year under Trump appointees, 87% of surveyed FTC employees agreed that senior agency officials maintain high standards of honesty and integrity. Today that share stands at 49%.

The statement is obviously political in part (Commissioner Wilson was one the two Republican Commissioners, both of whom have now resigned), but it also raises concerns (whatever side of the aisle you sit on) that need to at least be evaluated. From an immediate practical standpoint, however, Commissioner Wilson’s resignation is highly unlikely to have any actual impact on the FTC’s decisions for the foreseeable future, given the positions previously expressed by each of the Commissioners.

Agenda for the FTCs Public Forum

The FTC just released its agenda for Thursday’s Public Forum.

The schedule is as follows:

12:00-12:05 PM:  Opening Remarks by FTC Chair Lina Kahn

12:05-12:10 PM:  Rulemaking Presentation by Marie Choi, Office of General Counsel, Federal Trade Commission

12:10-12:15 PM:  Overview of the Notice of Proposed Rulemaking for Noncompetes, Elizabeth Wilkins, Director, Office of Policy and Planning

12:15-1:05 PM:  Panel of speakers from various companies

1:05-1:10 PM:  Reactions from FTC Commissioner Rebecca Slaughter

1:10-2:55 PM:  Public Comment

2:55-3:00 PM:  Closing Remarks by FTC Commissioner Alvaro Bedoya

If you wish to comment live during the forum, you can still try to sign up through a webform provided by the FTC, which seems to still be available. That said, these slots are “on a first-come first-serve basis during the time available,” so there may be no availability remaining now. (I have not signed up, as I will be submitting detailed written comments with a group of dozens of other lawyers, and do not want to detract from those.)

One more note: The FTC is already taking written comments. At this point – with over a month to go before the comment period closes – the FTC has already received over 11,000 comments. While many are very short, many are not, and the ones that will follow will also likely include extensive information for the FTC to evaluate.

The FTC has committed to reviewing and considering all of the comments it receives. Given the size of their staff, this will likely take a substantial amount of time.