Revised Jurisdictional Thresholds for Section 8 of the Clayton Act, 3742 [2023-00996]
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Federal Register / Vol. 88, No. 13 / Friday, January 20, 2023 / Notices
becomes a director, officer, or employee
with such responsibility.
Other paragraphs contain standard
provisions regarding compliance
reports, notice of changes in the
Respondents, and access to documents
and personnel.33 The term of the
proposed order is twenty years.34
By direction of the Commission,
Commissioner Wilson dissenting.
April J. Tabor,
Secretary.
Dissenting Statement of Commissioner
Christine S. Wilson
lotter on DSK11XQN23PROD with NOTICES1
Today, the Commission announced
that it has accepted, subject to final
approval, a consent agreement with
Prudential Security, Inc. The consent
resolves allegations that the use of noncompete agreements in employee
contracts constitutes an unfair method
of competition that violates Section 5 of
the FTC Act. This case, which alleges a
stand-alone violation of Section 5, is
one of the first to employ the approach
that the recently issued Section 5 Policy
Statement 1 describes. For the reasons
explained below, I dissent.
One point is worth emphasizing: my
vote to oppose issuance of the
complaint does not mean that I endorse
or condone the conduct of Prudential
Security. The company required its
security guards to sign non-compete
agreements that prohibited employees
from accepting employment with a
competing business for two years
following conclusion of their
employment with Prudential. Moreover,
a liquidated damages provision required
employees to pay Prudential $100,000
for violations of the non-compete
agreement. Based on these facts, it
seems appropriate that a Michigan state
court found that the non-compete
agreements were unreasonable and
unenforceable under state law.2
Instead, my vote reflects my
continuing disagreement with the new
Section 5 Policy Statement and its
application to these facts. When it was
issued, I expressed concern that the
Policy Statement would be used to
condemn conduct summarily as an
unfair method of competition based on
little more than the assignment of
33 Id.
§§ IV–VII.
§ X.
1 Fed. Trade Comm’n, Policy Statement Regarding
the Scope of Unfair Methods of Competition Under
Section 5 of the Federal Trade Commission Act
(Nov. 10, 2022), https://www.ftc.gov/system/files/
ftc_gov/pdf/p221202sec5enforcement
policystatement_002.pdf.
2 Complaint ¶ 22.
34 Id.
VerDate Sep<11>2014
17:29 Jan 19, 2023
Jkt 259001
adjectives.3 Unfortunately, that is the
approach taken in this case.
The Complaint offers no evidence of
anticompetitive effect in any relevant
market. According to the Complaint,
Prudential’s use of non-compete
agreements ‘‘has harmed employees’’ by
limiting their ability to work for other
firms in the security guard industry.4 It
asserts that Prudential’s use of noncompete agreements is ‘‘coercive and
exploitative’’ and ‘‘tends to negatively
affect competition conditions’’ 5—but it
appears that those ‘‘competition
conditions’’ pertain only to individual
employees. Similarly, the Complaint
offers only a conclusory assertion that
‘‘[a]ny possible legitimate objectives
. . . could have been achieved through
significantly less restrictive means,
including . . . confidentiality
agreements that prohibited disclosure of
any confidential information.’’ 6 This
assertion is unsubstantiated.
Another aspect of the case also
concerns me. This enforcement action is
designed not to provide effective relief
but instead to signal activity with
respect to non-compete agreements in
the employment arena. As the
Complaint describes, Prudential sold
the bulk of its security guard business
to another security guard company,
Titan Security Group. The former
Prudential security guards who now
work for Titan are not subject to noncompete agreements.7 Moreover, now
that Prudential no longer provides
security guard services, there is no
reason for the company to seek to
enforce non-compete agreements against
former Prudential security guards who
did not move to Titan.
I wish it were accurate to say that this
case (with apologies to Shakespeare) is
a tale of sound and fury, signifying
nothing. Unfortunately, it has great
significance: it foreshadows how the
Commission will apply the new section
5 Policy Statement. Practices that three
unelected bureaucrats find distasteful
will be labeled with nefarious adjectives
and summarily condemned, with little
to no evidence of harm to competition.
I fear the consequences for our
3 See Christine S. Wilson, Comm’r, Fed. Trade
Comm’n, Dissenting Statement Regarding the
‘‘Policy Statement Regarding the Scope of Unfair
Methods of Competition Under section 5 of the
Federal Trade Commission Act’’ (Nov. 10, 2022),
https://www.ftc.gov/system/files/ftc_gov/pdf/
P221202Section5PolicyWilsonDissentStmt.pdf.
4 Complaint ¶¶ 23, 25.
5 Complaint ¶ 29.
6 Complaint ¶ 26.
7 Complaint ¶ 16.
PO 00000
Frm 00038
Fmt 4703
Sfmt 4703
economy, and for the FTC as an
institution.
[FR Doc. 2023–01093 Filed 1–19–23; 8:45 am]
BILLING CODE 6750–01–P
FEDERAL TRADE COMMISSION
Revised Jurisdictional Thresholds for
Section 8 of the Clayton Act
Federal Trade Commission.
Notice.
AGENCY:
ACTION:
The Federal Trade
Commission announces the revised
thresholds for interlocking directorates
required by the 1990 amendment of
Section 8 of the Clayton Act. Section 8
prohibits, with certain exceptions, one
person from serving as a director or
officer of two competing corporations if
two thresholds are met. Competitor
corporations are covered by Section 8 if
each one has capital, surplus, and
undivided profits aggregating more than
$10,000,000, with the exception that no
corporation is covered if the competitive
sales of either corporation are less than
$1,000,000. Section 8(a)(5) requires the
Federal Trade Commission to revise
those thresholds annually, based on the
change in gross national product. The
new thresholds, which take effect
immediately, are $45,257,000 for
Section 8(a)(1), and $4,525,700 for
Section 8(a)(2)(A).
DATES: January 20, 2023.
FOR FURTHER INFORMATION CONTACT:
Christopher M. Grengs (202–326–2612),
Bureau of Competition, Office of Policy
and Coordination.
Authority: 15 U.S.C. 19(a)(5).
SUMMARY:
April J. Tabor,
Secretary.
[FR Doc. 2023–00996 Filed 1–19–23; 8:45 am]
BILLING CODE 6750–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
Notice of Closed Meeting
Pursuant to section 1009(d) of 5
U.S.C. 10, notice is hereby given of the
following meeting.
The meeting will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended, and the Determination of
the Director, Strategic Business
Initiatives Unit, Office of the Chief
Operating Officer, CDC, pursuant to
Public Law 117–286. The grant
E:\FR\FM\20JAN1.SGM
20JAN1
]]>Agencies
[Federal Register Volume 88, Number 13 (Friday, January 20, 2023)]
[Notices]
[Page 3742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00996]
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
Revised Jurisdictional Thresholds for Section 8 of the Clayton
Act
AGENCY: Federal Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission announces the revised thresholds
for interlocking directorates required by the 1990 amendment of Section
8 of the Clayton Act. Section 8 prohibits, with certain exceptions, one
person from serving as a director or officer of two competing
corporations if two thresholds are met. Competitor corporations are
covered by Section 8 if each one has capital, surplus, and undivided
profits aggregating more than $10,000,000, with the exception that no
corporation is covered if the competitive sales of either corporation
are less than $1,000,000. Section 8(a)(5) requires the Federal Trade
Commission to revise those thresholds annually, based on the change in
gross national product. The new thresholds, which take effect
immediately, are $45,257,000 for Section 8(a)(1), and $4,525,700 for
Section 8(a)(2)(A).
DATES: January 20, 2023.
FOR FURTHER INFORMATION CONTACT: Christopher M. Grengs (202-326-2612),
Bureau of Competition, Office of Policy and Coordination.
Authority: 15 U.S.C. 19(a)(5).
April J. Tabor,
Secretary.
[FR Doc. 2023-00996 Filed 1-19-23; 8:45 am]
BILLING CODE 6750-01-P
