On July 3, 2024, in Ryan v. Federal Trade Commission, a district court in the Northern District of Texas preliminarily enjoined the implementation and enforcement against the plaintiff and plaintiffs-intervenors of a Federal Trade Commission (FTC) Rule (the Rule) banning almost all noncompete agreements between employers and workers. The court also stayed the Rule’s September 4, 2024, effective date as to the plaintiff and plaintiffs-intervenors.
The FTC published the Rule in May 2024, claiming the new regulation was addressing unfair methods of competition. But the district court, after reviewing the “text, structure, and history” of the FTC Act, ruled that the FTC lacked authority to issue the Rule because the agency “lacks substantive rulemaking authority with respect to unfair methods of competition.” The court also concluded that the Rule was arbitrary and capricious under the Administrative Procedure Act (APA), because the agency had provided “no evidence or reasoned basis” for why it had “chose[n] to impose such a sweeping prohibition — that prohibits entering or enforcing virtually all non-competes — instead of targeting specific, harmful non-competes.”
The district court limited the preliminary injunctive relief to the plaintiff and four plaintiff-intervenors, declining to enter a universal injunction or to extend the injunction to members of the plaintiff-intervenor business associations. The court noted that it intends to resolve the case, presumably including the scope of relief, on the merits by August 30, 2024.
In addition to the challenge in this case, other plaintiffs have challenged the Rule in the Eastern District of Pennsylvania, which has similarly set the case there on a fast track. The Rule’s validity is thus likely headed to the U.S. Court of Appeals for the Third and Fifth Circuits on similar timelines. Although the district court in Ryan issued a preliminary injunction only as to the challengers before the court, Fifth Circuit precedent makes clear that the usual relief for unlawful agency rules under the APA, 5 U.S.C. § 706, is vacatur, which invalidates the rule in all its applications, no matter the party. Fifth Circuit precedent also makes clear that preliminary relief under the APA, 5 U.S.C. § 705, extends to the same scope, authorizing a non-party-specific stay of unlawful rules. Thus, if litigation proceeds under the correct framework, and the courts agree with the challengers that the Rule is unlawful, the courts should vacate the Rule so that it cannot be applied to anyone.
Background and District Court’s Ruling
The Rule prohibits certain noncompete agreements, which, according to the FTC, are “unfair methods of competition” in violation of Section 5 of the FTC Act (15 U.S.C. § 45). The FTC claimed authority to issue the Rule under Section 6(g) of the FTC Act (15 U.S.C. § 47(g)). Ryan LLC, a tax services firm, and a group of intervenors (collectively, the plaintiffs), challenged the Rule, arguing that “(i) the FTC acted without statutory authority; (ii) the Rule is the product of an unconstitutional exercise of power; and (iii) the FTC’s acts, findings, and conclusions were arbitrary and capricious.” The plaintiffs sought a stay of the effective date of the Rule and a preliminary injunction precluding enforcement of the Rule. The district court determined that the plaintiffs established all four factors to obtain a preliminary injunction: the plaintiffs are likely to succeed on the merits; they face a substantial threat of irreparable harm absent an injunction; the balances of the equities weigh in their favor; and an injunction serves the public interest.
First, the district court ruled that the plaintiffs are likely to succeed in establishing that the FTC lacks authority to issue the Rule. The court reasoned that Congress did not confer substantive rulemaking authority under Section 6(g). Rather, the court explained, the statutory text and history support the conclusion that Section 6(g) is a “housekeeping statute” that authorizes the FTC to promulgate “what the APA terms ‘rules of agency organization procedure or practice’ as opposed to ‘substantive rules.’” The court also relied on historical practice, explaining that where a statute did not include a sanction, the agency traditionally had authority only to make interpretive or procedural rules, not substantive rules. And “Section 6(g) contains no penalty provision — which indicates a lack of substantive force,” the court reasoned. In addition, the court noted that while the 1975 Magnuson-Moss Warranty–Federal Trade Commission Improvement Act gave the FTC authority to promulgate rules regarding unfair or deceptive acts or practices, the act did not extend that authority to unfair methods of competition, the asserted basis for the Rule.
The court also held that the plaintiffs are likely to succeed in establishing that the Rule is unlawful under the APA, specifically on arbitrary-and-capricious grounds. The Rule lacked a reasoned basis, the court explained, because the prohibition was “unreasonably overbroad.” For instance, the FTC provided no evidence supporting its choice to implement “sweeping prohibition” rather than “targeting specific, harmful non-competes,” and it “fail[ed] to consider the positive benefits of noncompete agreements.” The court further noted that the FTC cited policies that were based on specific factual situations “completely inapposite” to the Rule’s categorical ban. Finally, the court reasoned that the FTC failed to sufficiently consider alternatives to a ban, because the agency did not weigh the reliance interests it was legally required to assess.
Second, the district court ruled that the plaintiffs established that they would suffer irreparable harm absent injunctive relief. Compliance with a regulation later held to be invalid “almost always” leads to irreparable harm. And the plaintiffs averred that they would suffer harm by having to inform workers that noncompete provisions were invalid, which would increase the likelihood that departing workers would take intellectual property and proprietary methods to competitors. Employers would thus lose bargained-for contractual protections and would have to spend time and effort counteracting the Rule’s effects.
Finally, the district court ruled that the balance-of-the-harms and the public-interest factors favor the plaintiffs. The court explained that “[g]ranting the preliminary injunction serves the public interest by maintaining the status quo and preventing the substantial economic impact of the Rule, while simultaneously inflicting no harm on the FTC.” The court reasoned that “the Rule makes unenforceable long-standing contractual agreements that have been judicially recognized as lawful and beneficial to the public interest.”
Regarding the proper scope of injunctive relief, the court acknowledged that the Fifth Circuit had affirmed a universal injunction in a case involving immigration law. Ryan, by contrast, does not involve governmental entities as plaintiffs, and the plaintiffs offered no reason on the preliminary injunction motion why universal relief was necessary. The court thus limited injunctive relief to the plaintiff and plaintiff-intervenors.
Next Steps and Implications
The district court in the Ryan case ordered the parties to file a joint status report on July 9, 2024, to set the schedule for further proceedings, which the court anticipates will include deadlines for (i) the FTC to file responsive pleadings; (ii) the Parties’ amended pleadings, if any; (iii) further filings of the administrative record; and (iv) the Parties’ respective briefing on the merits.
The preliminary injunction remains in effect until the court rules on the merits — which the court stated it intends to do by August 30, 2024.
The FTC is likely to appeal; the agency can choose whether to appeal from either or both the preliminary injunction and/or any permanent relief that the district court may enter.
In addition, in the separate lawsuit challenging the Rule that is pending in a federal district court in Pennsylvania, a ruling on a motion for preliminary injunction is expected before July 23, 2024. However the Pennsylvania federal court rules, the losing party likely will seek reversal in the Third Circuit. Thus, the Fifth and Third Circuits are likely to hear appeals on a similar timeline, with any disagreement teeing up possible Supreme Court review. Importantly, now that the Supreme Court has overruled Chevron in Loper Bright Enterprises v. Raimondo, No. 22-1219, 2024 WL 3208360 (U.S. June 28, 2024), both the district courts and appellate courts should approach the question of whether the FTC has authority to issue the Rule without deference to the agency’s reading of the statute.
Notably, the district court and the parties in Ryan have thus far primarily approached the remedial question as a question of the scope of preliminary injunctive relief rather than as a question of vacatur of an unlawful rule under the APA. Based on that framing, the district court limited its injunctive relief and stay of effective dates to only the plaintiffs in the case, even declining to extend that relief to the individual members of the plaintiff trade associations.
But Fifth Circuit precedent — including a recent decision the district court cited — clearly establishes that “vacatur under [5 U.S.C.] § 706 is … the ‘default’ remedy for unlawful agency action,” because § 706 “provides that a ‘reviewing court shall’ set aside unlawful agency action.” Braidwood Management, Incorporated v. Becerra, 23-10326, 2024 WL 3079340, at *14 (5th Cir. June 21, 2024). Thus, “[a]s [the Fifth Circuit] put it in a couple of recent cases, setting aside agency action under § 706 has ‘nationwide effect,’ is ‘not party-restricted,’ and ‘affects persons in all judicial districts equally.’ That is because, unlike an injunction, which operates in personam, vacatur operates on the status of agency action in the abstract.” Id. at *13. And § 705 of the APA authorizes preliminary relief of the same scope as § 706, meaning § 705 authorizes a stay of an unlawful rule without respect to parties. Career Colleges & Schools of Texas v. United States Department of Education, 98 F.4th 220, 255 (5th Cir. 2024).
Those are the terms on which the Texas and Pennsylvania litigation, and ultimately the Fifth and Third Circuit appeals, should proceed, in which case rulings against the Rule would “act[] directly on the … rule” rather than remain limited to specific parties, and thus would invalidate the rule for anyone and everyone. Corner Post, Inc. v. Board of Governors of Federal Reserve System, No. 22-1008, 2024 WL 3237691, at *16 (U.S. July 1, 2024) (Kavanaugh, J., concurring). As we discuss further in our upcoming alert on Corner Post, the federal government has recently taken the “extreme stance” that vacatur is not available under the APA, but “all of th[e relevant] text, history, precedent, and commonsense” support “the straightforward and long-accepted conclusion that the phrase ‘set aside’ in the APA authorizes vacatur.” Id. at *20.
Associates Kyser Blakely, Nicole Welindt, and Leila A. Witcher contributed to this article.
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