Photo of Barbara Sicalides

From shepherding transactions through regulatory challenges to defending against civil and criminal antitrust investigations and litigation, clients turn to Barbara for clear, thorough, and practical advice on complex antitrust and competition matters.

Register Here
Tuesday, May 21 • 2:00 – 3:00 p.m. ET

The Federal Trade Commission (FTC) recently voted along party lines to enact a comprehensive ban on nearly all worker noncompetition provisions. This final rule, which applies to a broad range of employers and employees – from entry-level to executives, is scheduled to become effective on September 4, 2024, 120 days following its publication in the Federal Register on May 7, 2024.Continue Reading Understanding the FTC’s Noncompete Ban: A Comprehensive Guide for Employers

This article was republished on EACC-NY on April 25, 2024.

The Federal Trade Commission (FTC) voted along party lines (3 to 2) to ban all worker noncompetition provisions. The final rule applies to all employees, including senior executives, and will become effective on September 4, 2024.Continue Reading FTC Bans Employee Noncompete Clauses

Speaking at the Global Competition Review: Law Leaders Global Summit last month, Commissioner Alvaro M. Bedoya of the Federal Trade Commission (FTC) argued that the FTC could — and should — combat worker misclassification under Section 5 of the FTC Act, as an unfair method of competition. Commissioner Bedoya advocated that worker misclassification — when an employer classifies a worker, who should be an employee, as an independent contractor — satisfies the criteria established by the FTC in its November 2022 policy statement, for when conduct constitutes an unfair method of competition. Specifically, the commissioner stated that worker misclassification distorts competitive conditions when it allows companies who improperly classify their employees as independent contractors to underbid those competitors that correctly classify employees. Additionally, worker misclassification may be coercive, exploitative, and abusive when workers who know they are being misclassified feel that they have no choice but to accept such treatment. Commissioner Bedoya also suggested that an employer’s efforts to limit the independence of a worker classified as an independent contractor could constitute an illegal vertical restraint on trade.Continue Reading Employers Beware: Worker Misclassification May Be Seen as Anticompetitive Conduct

The Department of Justice (DOJ) Antitrust Division recently suffered another setback in its most recent effort to secure criminal convictions for labor-side violations of Section 1 of the Sherman Act. Having finally secured a successful criminal conviction, which came by way of plea deal and deferred prosecution agreement, the DOJ proceeded to trial in Maine against four home health executives who the government alleged had conspired to enter into a no-poach agreement and fix wages paid to home health aides. After a two-week trial, the jury acquitted all four of the defendants, marking the third time the DOJ has failed to convince a jury to convict defendants for alleged Section 1 violations in the labor market.Continue Reading DOJ Fails to Convict in No-Poach/Wage Fixing Case

On January 5, the Federal Trade Commission (FTC) voted 3-1 to publish its Notice of Proposed Rulemaking, proposing a new rule that, if implemented, would bar employers from entering into noncompete agreements with their workers, and require employers to rescind existing noncompete restrictions with current and former workers. The proposed rule supersedes state laws that are less protective of employees, but keeps the state law that provides employees greater protection. The proposed rule excludes franchisees from the definition of “worker” and has a single, limited exception that applies to the sale of a business.Continue Reading FTC Proposes Rule to Ban Noncompete Clauses With Very Limited Exceptions

Q: Is proof of conspiracy required to state a claim that a no-poach agreement violated antitrust laws?

A: Many recent no-poach agreement antitrust claims have risen within the franchise context, where the alleged agreement was plainly described in the operative franchise agreements. In those cases, the parties fought over what standard of review should apply to the undisputed agreement. However, franchise cases are the exception not the norm. Many, if not most, Sherman Act Section 1 claims rise or fall on the plausibility of the allegations of an agreement, often oral, between the accused firms. Recently, the Ninth Circuit affirmed a district court’s dismissal of a factually threadbare no-poach antitrust claim. In Fonseca v. Hewlett-Packard Co.,[1] a former employee of Hewlett-Packard Co. (HP), who was fired by HP and not hired by one of HP’s competitors, alleged HP had entered into an illegal no-poach agreement with the competitor. Highlighting that no-poach antitrust cases require more than simply allegations of agreements and parallel conduct, the Ninth Circuit upheld the district court’s dismissal because the allegations of a conspiracy did not make sense and were not plausible. The decision serves as a poignant reminder that despite the class action bar’s and various government enforcement agencies’ (FTC, DOJ, and states attorneys general) stated desire to use the antitrust laws to protect employees’ wages and mobility, the law requires sufficient proof of a conspiracy to get beyond the pleadings stage of litigation.
Continue Reading No-Poach Case Against HP Dismissed for Failure to Allege a Plausible Conspiracy