The Advisors' Blog

Thanks to this Troutman Pepper insight for alerting me that the FTC has filed a notice of appeal of the Northern District of Texas’s decision to set aside the non-compete ban. Here’s a reminder of the status of the various challenges to the rule:

This is the second case appealed by the FTC, following its earlier appeal of a Florida federal court’s decision enjoining the FTC rule with respect to the individual Florida plaintiff. A third case challenging the FTC’s rule in Pennsylvania federal court was voluntarily dismissed by the plaintiff in early October. For now, the rule will remain on hold as the appeals make their way through the Fifth and Eleventh Circuits.

Like many things at the moment, though, the insight reminds us that the future of these appeals is subject to the political winds.

Regardless of which candidate wins the presidential election, a new administration will decide the leadership of the antitrust agencies and whether to continue the FTC’s appeals in the Fifth and Eleventh Circuits. Further, the timing of the appeals is unclear, and so is whether one or more appeals will eventually go to the Supreme Court. The FTC also has suggested that its appeals might not focus solely on the merits and has questioned whether the Texas court had the authority to set aside a rule or issue an injunction on a nationwide basis. Accordingly, an appeal could be decided on a number of different grounds.

– Meredith Ervine