What Fund Managers Should Know About the FTC’s Ban on Non‑Competes

Non-compete agreements have long been an important and commonplace contractual safeguard employed by hedge fund and other private fund managers to protect their valuable confidential information, client relationships and investments in their employees. However, non-compete provisions have been the subject of increasing scrutiny by state legislatures and courts in recent years, and employers have had to pay careful attention to crafting covenants that are narrowly tailored to protect their valid business interests. This scrutiny has now reached new heights as the federal government entered the fray. After proposing a ban on non-competes (Proposed Rule) in January 2023 and considering more than 26,000 comments on the proposal, on April 23, 2024, the Federal Trade Commission adopted a final rule supplanting the laws of most states and prohibiting virtually all non-compete provisions as an unfair method of competition (Final Rule). The Final Rule will take effect on September 4, 2024 – unless one of the numerous pending legal challenges is successful in pausing its implementation. This guest article by Dechert attorneys J. Ian Downes, Jeffrey W. Rubin and Sierra Sanchez discusses the scope of the Final Rule; the opposition and challenges to it; and guidance for navigating what could be a seismic shift in the law. For commentary from Downes and Rubin on the Proposed Rule, see “What Fund Managers Should Know About the FTC’s Proposed Ban on Non‑Compete Provisions” (Feb. 16, 2023).

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