Photo of Alexis Gilman

Alexis J. Gilman is a partner in Crowell & Moring’s Antitrust Group in the Washington, D.C. office, with significant prior government experience. At Crowell & Moring, Alexis advises and represents clients on a broad range of civil antitrust matters, including compliance counseling and training, premerger HSR notifications, merger reviews, government investigations, and litigation, with a particular focus on representing merging parties and third parties in merger investigations by the Federal Trade Commission, Department of Justice, and state attorneys general offices. His experience spans a wide-range of industries, including healthcare, retail, consumer goods, food and beverage, distribution, casinos and gaming, and telecommunications. In 2019, based on research with clients and peers, Alexis was selected by Who’s Who Legal for recognition in the category Competition – Future Leaders.

 

Yesterday, the Federal Trade Commission proposed a sweeping new rule that would ban employers from including non-compete terms in employment agreements with virtually all of their workers – from janitors to senior executives. Describing such agreements as an “exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses,” the FTC’s rule deems non-compete agreements to be an “unfair method of competition” under Section 5 of the FTC Act, without regard for any business justifications or reasonableness. Potential rulemaking against non-compete clauses has been percolating for some time and has support from the White House, but the breadth of the proposed rule is nonetheless surprising.

The FTC’s push for this rule under its Section 5 authority surely will spark legal—including constitutional—challenges that could delay implementation of any final rule for months, if not years. Companies need not immediately start rescinding or avoiding reasonably tailored non-compete agreements with employees, but should take note that the FTC is not likely to sit on the sidelines and wait for a final rule to come into effect before taking further action against some employers based on the scope of their non-compete agreements.  The proposed rulemaking and the FTC’s recent enforcement actions  targeting specific companies’ use of non-compete provisions as violations of Section 5 reflect the FTC’s and DOJ’s aggressive approach to antitrust enforcement in the labor markets – including the FTC’s desire to bring enforcement actions in this area even before any final rule goes into effect. Continue Reading FTC Proposes Rule to Categorically Ban Non-Compete Agreements

Here, we identify 10 key issues relating to how the U.S. antitrust agencies—the Federal Trade Commission (FTC) and Department of Justice (DOJ)—analyze CPG transactions.

1) High-End vs. Low-End

Antitrust agencies often define the market for the merging parties’ products quite narrowly. In one notable example, the FTC defined a market limited to “intense mints” (think

There was a time when a quick estimate of market shares might have been enough to provide a reasonable assessment of antitrust risk for a potential combination between two brick and mortar retail chain stores.

Not anymore.

The playbook for evaluating competitive concerns from a potential combination of two brick and mortar retailers has