Trade Secrets & Employee Mobility

On August 13, 2025, President Trump issued an executive order revoking former President Biden’s July 9, 2021 Executive Order 14036 “Promoting Competition in the American Economy” (the “Biden Order”).

Comprised of 14 pages of exposition, mission-setting, and agency directives, the Biden Order affirmed that administration’s aim to “enforce the antitrust laws to combat excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony—especially as these issues arise in labor markets, agricultural markets, Internet platform industries, healthcare markets (including insurance, hospital, and prescription drug markets), repair markets, and United States markets directly affected by foreign cartel activity[.]” The Biden Order set out a “Whole-of-Government competition Policy” that directed federal agencies, such as the Federal Trade Commission (“FTC”), to adopt pro-competitive regulations and rescind regulations that “create unnecessary barriers to entry that stifle competition,” including narrowing or eliminating the scope of enforceable restrictive covenants.

According to a report in the Wall Street Journal last week, the Federal Trade Commission is considering new regulations to prohibit the use of noncompetes and to target their use in individual cases through enforcement actions. Although President Biden issued a vague Executive Order early in his administration that “encourage[d]” the FTC to “consider” exercising its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility,” no concrete action has been taken to date. That is not entirely surprising given that, until last month, the Commission was split 2-2 along partisan lines. What has since changed that may now make federal noncompete regulation a real possibility, however, is the appointment last month of Alvaro Bedoya to the FTC, giving the Democrats a 3-2 majority.

Lina Khan, the 33-year-old Biden-appointed Chair of the FTC, told the Wall Street Journal, “We feel an enormous amount of urgency given how much harm is happening against the workers. This is the type of practice that falls squarely in our wheelhouse.” Other Commissioners disagree. Commissioner Noah Phillips has said the agency doesn’t have legal authority to impose such rules, and Commissioner Christine Wilson said last year it was “premature” to pass a federal rule because many states had taken their own actions to address noncompetes. Indeed, noncompete regulation has been the province of the states for over 200 years.