FTC Targets M&A Agreements in Continued Campaign Against Noncompete and No-Poach Clauses

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In the span of five months, the U.S. Federal Trade Commission (FTC) brought two cases alleging that noncompete and no-poach clauses contained in acquisition agreements violated antitrust laws. In September 2019, the FTC filed a complaint challenging an allegedly unreasonable noncompete clause in an underlying acquisition agreement,1 and in January 2020, the FTC filed a complaint alleging that two merging parties substantially lessened competition by entering into a series of unlawful noncompetes and no-poach agreements pursuant to the parties’ underlying transactions.2 These complaints follow modifications to reporting instructions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) that now require filers to submit to the antitrust agencies all noncompete agreements between the parties when notifying a reportable transaction.3

Viewed along with the changed HSR Act reporting obligations, the FTC’s recent challenges4 show that acquisition agreements have become increasingly fertile grounds for antitrust authorities to focus their broader efforts5 against unreasonable noncompete, no-poach and similar agreements.

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