Newly Appointed Commissioner Holyoak Criticizes FTC Direction and Policies – Antitrust Byte | Epstein Becker Green

In prepared remarks for the Competitive Enterprise Institute’s Annual Summit on May 31, 2024, Melissa Holyoak, newly appointed Commissioner of the Federal Trade Commission (“FTC” or “Commission”), recognized the benefits of periodically reassessing and debating the direction of government policy.

But she added that “careful reconsideration of long-standing views and policies — coupled with thoughtful change consistent with the rule of law — is not how I would describe the last three years (at the FTC).”

In particular, commenting on the FTC rule prohibiting non-compete agreements, Commissioner Holyoak said:

The FTC’s history teaches us that pursuing a rulemaking and enforcement agenda that exceeds the agency’s delegated authority wastes significant resources on long-term projects that, because they are ultimately found to be illegal, provide no benefit to consumers. Not only does this divert resources away from the agency’s core mission, it also undermines its legitimacy and reduces the chances that Congress will provide the Commission with the resources and authority it needs. Unfortunately, the Commission’s recent actions suggest that history may be repeating itself.

Less than a month later, on July 3, the U.S. District Court for the Northern District of Texas affirmed Commissioner Holyoak’s comments, partially ordering a stay of implementation of the FTC’s noncompete order. A final ruling on the merits by the Northern District of Texas, expected by August 30, 2024, and a pending ruling in the Eastern District of Pennsylvania, expected by July 23, 2024, may further confirm Commissioner Holyoak’s concerns.