The Rule Is Dead

On Tuesday, President-Elect Trump named Andrew Ferguson as incoming Federal Trade Commission (FTC) Chair. After earning his law degree from the University of Virginia, Mr. Ferguson clerked on the DC Circuit and for Supreme Court Justice Clarence Thomas. Mr. Ferguson then spent several years at law firms in Washington DC. Most recently, Mr. Ferguson served as chief counsel to Senator Mitch McConnell and as Republican counsel to the US Senate Judiciary Committee, before he became an FTC Commissioner in April 2024. Notably, Mr. Ferguson authored a particularly scathing dissent of the FTC's rule banning noncompetes, which was passed in April but which has yet to go into effect.¹

In his dissent, Mr. Ferguson highlighted three main critiques of the noncompete rule. First, he stated that the FTC lacked authority under the FTC Act to issue the rule.² He explained that not only does the text of the Act not empower the FTC to issue such a wide-sweeping rule, but this would