FTC Ban on Non-Competes For Real?

People often ask me about the 2024 "FTC ban on non-competes." In sum, it's illusory. First, a government agency like the FTC surely lacks the constitutional authority to speak a sweeping change like this into existence. It's the legislature's job to write our substantive laws. So, from day one, I had my doubts that the FTC regulation banning non-competes would have staying power. Unsurprisingly, a federal court stuck down this regulation a few months ago in Ryan LLC v. Chamber of Commerce. See: https://www.uschamber.com/cases/antitrust-and-competition-law/ryan-llc-v.-ftc

Now we are mere weeks away from a second Trump presidency. He can entirely withdraw this regulation with the stroke of a pen if he wants. In sum, if people want non-compete bans, they are going to have to lobby their state legislatures for one. Contracts (including non-competes) are creatures of state law, so the state law approach is the only one that would be sure to be effective.