Commission is to “ reinvigorate ” Section 5 and repeal the gradual retreat of the FTC in recent decades from pursuing Section 5 cases that existed outside of the purview of the Sherman Act . Interestingly , in the November statement , the FTC provides a rather robust compilation of judicial precedent , accumulated during decades of Section 5 cases up to the 1970s , supporting the argument that Section 5 does not apply only to practices that violate the Sherman Act or other antitrust laws . Chair Khan noted in announcing the rule , “ The freedom to change jobs is core to economic liberty and to a competitive , thriving economy .”
The NPRM from the FTC is not presented purely in a bureaucratic vacuum . Notably , Senator Chris Murphy ( D-CT ) presented the Workforce Mobility Act in February 2021 with bipartisan co-sponsorship . The bill was read twice and then referred to the Committee on Health , Education , Labor , and Pensions and currently remains in committee .
There are headwinds for the proposed rule . The U . S . Chamber of Commerce , no stranger to challenging federal agencies , has stated its intent to sue the FTC if it moves forward with the proposed rule . The U . S . Chamber , on their website , called the rule “ blatantly unlawful ,” and noted that non-competes are an “ important tool in fostering innovation and preserving competition ,” in direct contradiction to the FTC ’ s cited evidence .
Additionally , while the Commission voted 3 to 1 in favor of the new rule , Commissioner Christine S . Wilson , in lone dissension , felt the proposed rule would prohibit conduct “ subject to the whims and political agendas of sitting Commissioners ,” unconstrained by “ guardrails .” However , Chair Khan , writing for the majority in her statement , and in retort to Commissioner Wilson , notes , “ to import
into Section 5 the legal standards we happen to prefer , rather than faithfully following the instructions that Congress and courts have given us , would reflect an agency gone rogue .”
So , where does this leave you , the reader , physician or non-physician , of Louisville Medicine ? Physicians , as is well known , are increasingly bound by non-compete contracts , not because of permission to speak about them at will , but because of the ubiquity of colleagues who very publicly “ wait out ” their non-competes . In this ubiquity , are the costs only borne by the physician ? Should we consider the burden on the patient who endures the severing of continuity of care and the trauma of losing a trusted ally ? Is a physician ’ s knowledge in the practice of medicine a “ trade secret ,” secrets non-competes purportedly protect ? Is a physician ’ s ability to practice and care for patients something that should be removed from the market , however temporary , given the known finite supply of physicians ? Why has the Kentucky Medical Association ( KMA ) not made this issue a priority at the state level ? Is the KMA willing to take up this issue in defense of physicians ’ professional liberty ? Who may lay claim , outside of the licensing board , to the mobility of the rights of use of knowledge gained by a physician in medical school , residency and practice ? If nothing else , considering the current FTC NPRM on non-competes may provide a moment to consider who controls , or would want to lay claim to , one ’ s professional liberty ?
These questions , in the interest of freedom , are for you , the individual , to decide . The FTC is requesting input until Mar . 10 , 2023 , and anyone may comment at www . regulations . gov / commenton / FTC-2023-0007-0001 .
Dr . Kolter is a practicing internist with Baptist Health .
March 2023 37