What Now? Unpacking the FTC Non-compete Ban

Megan Gerking | Morrison & Foerster LLP

Megan Gerking, a former trial attorney with the DOJ’s Antitrust Division, is a partner in Morrison Foerster’s Global Antitrust Law practice where she specializes in complex government-facing antitrust matters. Megan represents companies in criminal and civil conduct investigations before the U.S. Department of Justice (DOJ) Antitrust Division, Federal Trade Commission (FTC), and state enforcers, and navigates clients through all phases of merger review. Megan regularly counsels clients on antitrust compliance issues, including those arising from industry consortiums, trade association activities, and other collaborations.

Megan has obtained successful results for clients in several investigations and related civil litigation matters involving allegations of anticompetitive conduct related to employees and is a thought leader on the intersection of antitrust and labor issues. Megan counsels clients on a spectrum of matters, including non-compete and non-solicitation clauses and other restrictive covenants.

While serving in the Antitrust Division, Megan investigated and prosecuted federal antitrust violations and international cartel cases, including the first individual extradited to the United States on an antitrust charge. For her work investigating and prosecuting international price fixing, bid rigging, and market-allocation conspiracies by automotive parts suppliers, Megan earned the Assistant Attorney General’s Award for Distinguished Service.

Megan has served as a Non-Governmental Advisor to the International Competition Network (ICN) and spoke at the ICN Cartel Workshop in Lisbon, Portugal, in November 2022. Megan is in the ABA Antitrust Section leadership and serves as an Editor for the Antitrust Source Magazine.

David J. Shaw | Morrison & Foerster LLP

David Shaw is a partner in Morrison Foerster’s Global Antitrust Law Practice group, where he draws upon his extensive experience across merger clearance litigation, cartel representations, counseling, and State Attorney General antitrust enforcement to guide clients through government-facing antitrust matters.

Most recently, David was the Deputy Chief of Staff and Counsel to the Assistant Attorney General in the Antitrust Division of the Department of Justice. In this role, he advised and assisted the head of the Antitrust Division on law and policy related to the Division and managed relationships with state attorneys general across all Division matters, including directly handling relationships in the highest stakes and most sensitive matters facing the Division.

David is also active in the bar and currently serves as co-chair of the Exemptions and Immunities Committee of the ABA Antitrust Law Section.

David earned his B.A., magna cum laude with Highest Honors in government, from Patrick Henry College, and his J.D. from Georgetown University Law Center, where he served as Articles Editor for the Georgetown Law Journal.

Cooper J. Spinelli | Morrison & Foerster LLP

Cooper Spinelli is a partner in the firm’s Global Employment and Labor Group. His practice focuses on trade secrets and restrictive covenants, employee mobility and executive disputes, whistleblower claims, and general business litigation.

Cooper has represented clients in both affirmative and defensive trade secret misappropriation and employee mobility cases, including cases involving related IP issues. In addition, Cooper has represented companies in highly sensitive matters involving involuntary and negotiated departures of chief executive and other senior officers.

Cooper has also contributed to papers and leading treatises addressing trade secrets, employee mobility, and other related issues, including chapters for leading BNA treatises Trade Secrets: A State-by-State Survey, Covenants Not to Compete, Employee Duty of Loyalty, and Tortious Interference in the Employment Context.

Cooper received his J.D. magna cum laude from American University Washington College of Law, where he was elected to the Order of the Coif. During law school, Cooper was a senior editor on the executive board for the Administrative Law Review, the official law journal of the American Bar Association Section of Administrative Law & Regulatory Practice.

Andrew R. Turnbull | Morrison & Foerster LLP

Andrew Turnbull co-chairs the firm’s DEI Strategy + Defense Task Force and is a partner in the Global Employment + Labor Group. Andrew represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, such as OFCCP compliance, creating and implementing affirmative action plans, and defending OFCCP audits and onsite investigations.

Andrew is well-versed in defending clients against claims alleging trade secret misappropriation, breach of post-employment restrictions, wage-and-hour violations, discrimination, and retaliation. He routinely develops practical, proactive strategies to help employers minimize risk on various human resource matters.

Andrew is a member of the steering committee and actively involved in the Washington Metro Industry Liaison Group. He is also a member of the firm’s global Environmental, Social, and Governance (ESG) steering committee.

I. Companies and workers covered by the FTC’s final rule | 2:00pm – 2:10pm

II. Scope of the ban for new and existing non-competes | 2:10pm – 2:30pm

III. Possible exemptions from the ban, including sale of business non-competes | 2:30pm – 2:40pm

IV. Potential consequences for not complying with the final rule | 2:40pm – 2:50pm

V. Anticipated legal challenges | 2:50pm – 3:00pm

Break | 3:00pm – 3:10pm

VI. How the final rule fits into the broader trend against non-competes | 3:10pm – 3:25pm

VII. Practical strategies for businesses to navigate these trends | 3:25pm – 3:40pm