a)(2); Not. 112–13. [15] § 910.1(f). [16] Dissenting Statement of Comm’r Christine S. Wilson re the Notice of Proposed Rulemaking for the Non-Compete Clause Rule (Jan. 5, 2023), available athttps://www.ftc.gov/system/files/ftc_gov/pdf/p201000noncompetewilsondissent.pdf. [17] See, e.g., United States v. Addyston Pipe & Steel Co., 85 F. 271, 281 (6th Cir. 1898) (Taft, J.) (explaining that employment noncompete agreements “are generally upheld as valid”); Snow v. Align Tech., Inc., 586 F. Supp. 972, 977 (N.D. Cal. 2022). [18] The Proposed Rule would set a floor, not a ceiling. So, state laws could continue to be more restrictive of noncompete agreements than the Proposed Rule. § 910.4. [19] Not. 140–53. [20] West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (quoting Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)). [21] Id. at 2608–09. [22] Compare Nat’l Petrol. Refiners Ass’n v. FTC, 482 F.2d 672 (D.C. Cir. 1973) (concluding the FTC had substantive rulemaking authority), and 15 U.S.C. § 46(g) (“The Commission shall also have power . . . to make rules and regulations for the purpose of carrying out the provisions of this subchapter.”), with Wilson’s Dissent 10–12 (arguing that the required “clear authorization is unavailable”), and § 46(g) (burying authorizing provision in corporate-classification subsection), and Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018) (“Congress does not ‘hide elephants in mouseholes.’” (quoting Whitman v. Am. Trucking Ass’n. 531 U.S. 457, 468 (2001)). [23] See Gundy v. United States, 139 S. Ct. 2116, 2121 (2019) (“The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government.”). [24] A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935) (upholding Section 5 under nondelegation scrutiny because practices were banned in quasi-judicial proceedings on a case-by-case basis and reaching the opposite conclusion for a law giving the President the power to issue “cod

, boost the economy, protect workers, and provide much-needed flexibility for employees.Second, legal challenges will be made. Trade organizations and public interest groups have already signaled that they will file suit as soon as the ink dries on the new rule. The cases will surely raise several key points:The Scope of FTC rulemaking authority. The FTC says it has the power to issue its rule under Sections 5 and 6 of the FTC Act. Section 5, 15 U.S.C. 45 gives the FTC power over “unfair methods of competition” (UMC), and the FTC claims that non-compete clauses are out of bounds.But it remains unclear whether Section 5 sweeps as broadly as the FTC claims. Consider the text. Nowhere does Section 5 confer substantive rulemaking power. And the FTC traditionally has not issued UMC rules. So, to find rulemaking authority, the FTC has turned to Section 6(g) of the FTC Act, which allows the FTC “to make rules and regulations for the purpose of carrying out the provisions of this subchapter.” 15 U.S.C. 46(g).Legal commentators disagree over whether Section 6(g) confers substantive rulemaking authority or merely allows the FTC to issue procedural or housekeeping rules. Indeed, experts have contributed to an entire book on the topic. And ultimately, the courts will have to decide this question. The rulemaking authority will undoubtedly play a leading role once the FTC finalizes its rule.- Major Questions and Nondelegation. Two further issues complicate the FTC’s authority—one statutory and one constitutional. The “Major Questions Doctrine” poses one serious obstacle. That doctrine, rooted in statutory interpretation, tells Congress that it must be crystal clear before granting broad rulemaking power over important political and economic issues.The non-compete rule almost assuredly would amount to a “major” question under the Supreme Court’s rationale. The FTC itself has said that the rule would “increase American workers’ earnings between $250 billion and $296 billion per year.” That is pre

ns on companies’ abilities to make recyclability claims or use the popular “chasing arrows” symbol. The new law may create challenges for marketers because it is likely that a product that could be advertised as “recyclable” under the FTC’s Green Guides will not be able to be advertised as such in California. Lastly, and perhaps most importantly, FTC counsel was keenly interested in hearing from panelists on whether the FTC should engage in formal rulemaking or if the Green Guides are sufficient. Rulemaking has increasingly become an important avenue for the FTC to seek civil penalties and/or consumer redress in wake of the Supreme Court’s decision in AMG.FTC Rulemaking Authority, Pending Rulemakings and Civil PenaltiesThe FTC may use rulemaking to address unfair or deceptive practices or unfair methods of competition that occur commonly, in lieu of relying solely on actions against individual respondents.The Commission’s rulemaking authority comes from Section 6(g) of the FTC Act, 15 U.S.C. Sec. 46, which authorizes the Commission “to make rules and regulations for the purpose of carrying out the provisions of this subchapter.” See Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 693 (D.C. Cir. 1973), cert. denied, 415 U.S. 951 (1974) (Commission has authority to require octane labels on gasoline pumps). In 1975, Section 18 of the FTC Act, 15 U.S.C. Sec. 57a, became the Commission’s exclusive authority for issuing rules with respect to unfair or deceptive acts or practices under the FTC Act; Section 6(g) continues to authorize rules concerning unfair methods of competition.Under Section 18 of the FTC Act, 15 U.S.C. Sec. 57a, the Commission is authorized to prescribe “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce” within the meaning of Section 5(a)(1) of the Act. These rules are known as “trade regulation rules.” Among other things, the statute requires that Commission rulemaking proceedings p

and scope given the business justification for the restriction. Commissioner Wilson also focuses on “the lack of clear evidence to support the proposed rule” and the Commission’s failure to demonstrate harm to consumers and competition. She points out that “the current record shows that studies in this area are scant, contain mixed results, and provide insufficient support for the scope of the proposed rule.”What Happens Next?In another unprecedented move, the Commission is not engaging in rulemaking under the Magnuson-Moss process, which empowers the FTC to issue regulations for unfair and deceptive acts and practices but with highly cabined procedures that make rulemaking more difficult than the default rules of the Administrative Procedures Act (APA). Rather, the Commission is claiming the authority to issue binding regulations via the APA. This move is not without controversy, to say the least. The Commission claims that its authority to create binding regulations can be found in 15 U.S.C. 46(g), which empowers the FTC to:From time to time classify corporations and (except as provided in section 57a(a)(2) of this title) to make rules and regulations for the purpose of carrying out the provisions of [the FTC Act].Using APA procedures, the Commission published the proposed rule in the Federal Register to notify the public and give them an opportunity to submit comments. The Commission has provided for a 60-day comment period, which commenced on January 5, 2023. After the notice-and-comment process, the Commission may proceed with a final rule. After the Commission publishes a final rule, the rule would be effective no less than 30 days after the date of publication in the Federal Register, at which point one would expect near-certain, immediate challenges in federal court to the rule’s enforcement.At least one of the FTC’s commissioners seems to agree that those would-be challenges will be meritorious. As Commissioner Wilson explained in her dissent:[The proposed rule, if passe

What Should You do First Upon Receiving an FTC Civil Investigative Demand?The Federal Trade Commission has broad powers to investigate unfair and deceptive acts and practices. The FTC’s investigation and compulsory process powers are set forth in §§ 6, 9 and 20 of the FTC Act, 15 U.S.C. §§ 46, 49 and 57b-1. The FTC Rules ofPractice are published in the Code of Federal Regulations and set forth procedures governing inquiries, investigations and compulsory processes.

Final Safeguards Rule, p. 17. Those agencies are the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Board of Directors of the Federal Deposit Insurance Corporation, the National Credit Union Administration Board, and the Securities and Exchange Commission. 15 U.S.C. § 46(a). Final Safeguards Rule, pp. 18-19.

Stay safe!___________________________________________________ The FTC is authorized “to gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any person, partnership, or corporation engaged in or whose business affects commerce, excepting banks, savings and loan institutions . . . Federal credit unions . . . and common carriers . . .” 15 U.S.C. Sec. 46(a). “Commerce” is defined as “commerce among the several States or with foreign nations.” Id. at § 44.Id. For a light humored overview of the legislative process you can check out the Schoolhouse Rock- How a Bill Becomes a Law YouTube video.

Here's something they say about transferring the Bureau's authority to the FTC: Transferring all federal consumer protection authority to the Federal Trade Commission, the agency with vast regulatory experience in assessing practices affecting consumer financial services markets, would dramatically improve the federal regulatory framework for consumer financial protection.Maybe Heritage should have paid closer attention to the limits to the FTC's power spelled out in 15 U.S.C. section 46(a) (emphasis added): "The Commission shall also have power . . . To gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any person, partnership, or corporation engaged in or whose business affects commerce, excepting banks, savings and loan institutions described in section 57a(f)(3) of this title, Federal credit unions . . . ."And for a bonus, here is an excerpt from the report (footnotes omitted) on the causes of the Great Recession:Reckless lending did play a role in the crisis, but the reality is that millions of lenders and borrowers were responding rationally to incentives created by an array of deeply flawed government policies, including artificially low interest rates contrived by the Federal Reserve, the massive subsidy of risky loans by Fannie Mae and Freddie Mac,and the low-income lending quotas set by the Department of Housing and Urban Development.Perhaps Heritage should also have

3 Letter from Edith Ramirez, FTC Chairwoman, to Věra Jourová, Commissioner for Justice, Consumers and Gender Equality, European Commission, at 5 (Feb. 23, 2016), available athttps://www.ftc.gov/system/files/documents/public_statements/927423/160229ftc_privacyshieldletter.pdf.4Id. at 6. See also U.S. SAFEWEB Act, 15 U.S.C. § 46(j)(3) (providing the FTC with a number of tools to enhance cooperation with foreign law enforcement authorities).5 Letter from Stefan M. Selig, Under Secretary for International Trade, to Věra Jourová, Commissioner for Justice, Consumers and Gender Equality, European Commission, at 6 (Feb. 23, 2016), available athttp://ec.europa.eu/justice/data-protection/files/privacy-shield-adequacy-decision-annex-1_en.pdf.6Id. at 5.7 U.S. Dept of Commerce, EU-U.S. Privacy Shield Framework Principles 4-7 (Feb. 29, 2016), available athttp://ec.europa.eu/justice/data-protection/files/privacy-shield-adequacy-decision_en.pdf.

The FTC also pointed to figures suggesting cross-border fraud problems, including over 100,000 U.S. consumer complaints against foreign business in 2011. One of the provisions of the SAFE WEB Act, 15 U.S.C. §46(j), gives the FTC the authority to assist foreign authorities in investigating fraudulent and deceptive commercial practices, with certain exceptions. The FTC employed the SAFE WEB Act here, and in response Aegis Mobile, sought to quash the FTC’s subpoena on the grounds that Aegis Mobile was a “common carrier,” and would therefore be exempted from the subpoena.