Trade Secrets & Employee Mobility

As we wrote almost exactly a year ago – months before the Federal Trade Commission (FTC) issued its proposed noncompete rule – the Supreme Court’s decision in West Virginia v. EPA made it clear that the FTC does not have the authority to use its rulemaking powers to ban (or otherwise regulate) noncompetition agreements because it does not have “clear congressional authorization” to do so. The Supreme Court’s decision last week striking down the current Administration’s student loan forgiveness plan further confirms that the Supreme Court would likely strike down any noncompete rule promulgated by the FTC under the Major Questions Doctrine. See Biden v. Nebraska, 600 U.S. __ (June 30, 2023).