The FTC took two actions on February 26, 2025 to emphasize its continued focus on labor markets and to rededicate its efforts to a policy priority in common with those of the previous Administration.  First, the FTC approved a Final Order requiring a building service contractor to stop enforcing a no-hire agreement with its customers.  Second, FTC Chair Andrew Ferguson directed the FTC to form a Joint Labor Task Force dedicated to “protecting … American consumers in their roles as workers.”

Continue Reading Pair of FTC Actions Underscores Continued Focus on Labor Issues

Federal Trade Commission Chairman Andrew Ferguson announced to FTC staff on February 18 that the FTC would retain the 2023 Merger Guidelines as the framework for reviewing mergers and acquisitions. Citing the need for stability between presidential administrations, Chairman Ferguson rejected calls to set aside the 2023 Merger Guidelines to draft new ones or reinstate the 2010 Horizontal Merger Guidelines that had been in place prior to 2023. In his own memo to the Department of Justice’s Antitrust Division Staff, Acting Assistant Attorney General Omeed Assefi echoed Chairman Ferguson’s endorsement, signaling that the Division would also continue to apply the 2023 Guidelines in the name of enforcement continuity.

The decision to endorse the 2023 Guidelines is somewhat surprising given the circumstances of their adoption (a 3-0 vote from an all-Democrat Commission and adoption by the Biden DOJ) and the scrutiny they’ve undergone since adoption. Many commenters have criticized, among other things, their de-emphasis of modern economic theory in favor of reliance on older case law and their adoption of very low thresholds to apply presumptions of anti‑competitiveness. Endorsement of the 2023 Guidelines by the current administration has been touted as a win by antitrust hawks. Chairman Ferguson and Acting AAG Assefi did leave open the door to future modification, with Ferguson stating that “if experience teaches that revisions are appropriate, then the agencies can consider revisions as they have done in the past.” For now, however, parties planning mergers and acquisitions should continue to rely on the 2023 Guidelines when predicting enforcement decisions.

On February 3, 2025, President Trump appointed William B. Cowen as Acting General Counsel for the National Labor Relations Board (NLRB). Cowen has previously served in a variety of roles throughout the agency, including most recently as Regional Director for the Los Angeles Regional Office and previously as the NLRB’s Solicitor and an NLRB member. Cowen fills the role left vacant by President Trump’s firings of both Jennifer Abruzzo, the NLRB General Counsel appointed by President Biden, and Jessica Rutter, who served as Abruzzo’s Deputy General Counsel and took over as Acting General Counsel when Abruzzo was fired.

Continue Reading Acting NLRB General Counsel Pulls Back Memoranda

On January 14, 2025, the U.S. Department of Labor (DOL) issued another opinion letter (FLSA2025-1) reiterating its position that managers and supervisors are prohibited from participating in a tip pool under any circumstance.

Continue Reading DOL Provides Further FLSA Guidance Regarding Manager and Supervisor Participation in Tip Pools

On January 14, 2025, the U.S. Department of Labor (DOL) issued an opinion letter (FMLA2025-01-A) clarifying when an employer may count an employee’s leave taken under a state paid family leave program against that employee’s leave entitlement under the Family and Medical Leave Act (FMLA).

Continue Reading DOL Clarifies that Leave Taken Under State Paid Family Leave Programs May Run Concurrently with FMLA Leave

On November 22, 2024, the Securities and Exchange Commission (the “SEC” or “Commission”) announced its enforcement results for the fiscal year (“FY”) 2024. Though the SEC filed only 583 total enforcement actions in FY 2024—a decline of 26% from the 784 enforcement actions filed in FY 2023—the Commission obtained a record-setting $8.2 billion in financial remedies, which includes civil penalties and disgorgement amounts combined. Notably, 56% of the $8.2 billion in financial remedies was the result of a monetary judgment awarded in a single matter. 

Continue Reading SEC Enforcement Highlights for Fiscal Year 2024

Days before President Trump’s inauguration, the Federal Trade Commission (FTC) and Antitrust Division of the U.S. Department of Justice (DOJ) replaced their Antitrust Guidance for Human Resources Professionals (“2016 Guidance”), which had been in place since 2016.  The Antitrust Guidelines for Business Activities Affecting Workers covers similar ground as the prior guidance, but expands its reach to a few areas emphasized by the Biden Administration.  For example, where the 2016 Guidance primarily covered 1) naked agreements between employers not to poach workers or fix wages and 2) information-sharing arrangements between competing employers, the replacement guidance expands its coverage to other areas, including restrictions in the franchise and independent contractor contexts, non-competition agreements, ancillary agreements such as non-disclosure agreements, non-solicitation agreements, liquidated damages provisions, and conduct such as false earnings claims.

Continue Reading DOJ and FTC Release Replacement Human Resources Guidelines to an Uncertain Future

The Federal Trade Commission (FTC) secured a record consent penalty of $5.6 million against two merging parties on January 7, 2025 for improper pre-merger coordination, marking the agency’s first gun-jumping action in over a quarter century.  Verdun Oil Company and XCL Resources Holdings had agreed to acquire EP Energy LLC in a transaction requiring prior notification to the FTC and the U.S. Department of Justice under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”).  In the substantive antitrust investigation that followed the parties’ HSR Act notifications, the FTC secured a commitment for Verdun and XCL to divest assets as a condition of FTC approval for the transaction.  The FTC also discovered that the parties had violated the HSR Act.

Continue Reading FTC Secures Record Gun-Jumping Penalty in a Case with Several Lessons for Merging Parties

On November 22, 2024, the Securities and Exchange Commission (the “SEC” or “Commission”) announced its enforcement results for the fiscal year (“FY”) 2024. Though the SEC filed only 583 total enforcement actions in FY 2024—a decline of 26% from the 784 enforcement actions filed in FY 2023—the Commission obtained a record-setting $8.2 billion in financial remedies, which includes civil penalties and disgorgement amounts combined. Notably, 56% of the $8.2 billion in financial remedies was the result of a monetary judgment awarded in a single matter.

Continue Reading SEC Enforcement Highlights for Fiscal Year 2024

Today, in a highly anticipated decision, a Texas federal district court judge struck down the U.S. Department of Labor’s final regulation that increased the salary threshold for the “white collar” exemptions under the Fair Labor Standards Act (FLSA). The next salary threshold increase under the rule was scheduled to take effect on January 1, 2025. However, because the court’s ruling applies to all employers nationwide, that increase in the overtime threshold will no longer take effect.