[Federal Register Volume 88, Number 54 (Tuesday, March 21, 2023)]
[Notices]
[Pages 16977-16981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05701]


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FEDERAL TRADE COMMISSION

[File No. 211 0182]


Anchor Glass Container Corporation; Analysis of Agreement 
Containing Consent Order To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement; request for comment.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair methods of competition. 
The attached Analysis of Proposed Consent Orders to Aid Public Comment 
describes both the allegations in the complaint and the terms of the 
consent orders--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before April 20, 2023.

ADDRESSES: Interested parties may file comments online or on paper by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Please write: ``Anchor Glass 
Non-compete Restrictions; File No. 211 0182'' on your comment and file 
your comment online at https://www.regulations.gov by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, please mail your comment to the following address: Federal 
Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, 
Suite CC-5610 (Annex Q), Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Kathleen Clair (202-326-3435), Bureau 
of Competition, Federal Trade Commission, 400 7th Street SW, 
Washington, DC 20024.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule Sec.  2.34, 16 CFR 
2.34, notice is hereby given that the above-captioned consent agreement 
containing a consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of 30 days. The following 
Analysis of Agreement Containing Consent Orders to Aid Public Comment 
describes the terms of the consent agreement and the allegations in the 
complaint. An electronic copy of the full text of the consent agreement 
package can be obtained from the FTC website at this web address: 
https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before April 20, 2023. 
Write ``Anchor Glass Non-compete Restrictions; File No. 211 0182'' on 
your comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the https://www.regulations.gov website.
    Because of the agency's heightened security screening, postal mail 
addressed to the Commission will be delayed. We strongly encourage you 
to submit your comments online through the https://www.regulations.gov 
website. If you prefer to file your comment on paper, write ``Anchor 
Glass Non-compete Restrictions; File No. 211 0182'' on your comment and 
on the envelope, and mail your comment to the following address: 
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania 
Avenue NW, Suite CC-5610 (Annex Q), Washington, DC 20580.
    Because your comment will be placed on the publicly accessible 
website at https://www.regulations.gov, you are solely responsible for 
making sure your comment does not include any sensitive or confidential 
information. In particular, your comment should not include sensitive 
personal information, such as your or anyone else's Social Security 
number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure your comment does not include 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule Sec.  
4.10(a)(2), 16 CFR 4.10(a)(2)--including competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule Sec.  4.9(c). In 
particular, the written request for confidential treatment that 
accompanies the comment must include the factual and legal basis for 
the request and must identify the specific portions of the comment to 
be withheld from the public record. See FTC Rule Sec.  4.9(c). Your 
comment will be kept confidential only if the General Counsel grants 
your request in accordance with the law and the public interest. Once 
your comment has been posted on https://www.regulations.gov--as legally 
required by FTC Rule Sec.  4.9(b)--we cannot redact or remove your 
comment from that website, unless you submit a confidentiality request 
that meets the requirements for such treatment under FTC Rule Sec.  
4.9(c), and the General Counsel grants that request.

[[Page 16978]]

    Visit the FTC website at https://www.ftc.gov to read this document 
and the news release describing this matter. The FTC Act and other laws 
the Commission administers permit the collection of public comments to 
consider and use in this proceeding, as appropriate. The Commission 
will consider all timely and responsive public comments it receives on 
or before April 20, 2023. For information on the Commission's privacy 
policy, including routine uses permitted by the Privacy Act, see 
https://www.ftc.gov/site-information/privacy-policy.

Analysis of Agreement Containing Consent Order To Aid Public Comment

I. Introduction

    The Federal Trade Commission has accepted, subject to final 
approval, a consent agreement with Anchor Glass Container Corporation 
(``Anchor''), Lynx Finance GP, LLC (``Lynx GP''), and Lynx Finance, 
L.P. (``Lynx LP'') (collectively, ``Respondents''). Anchor manufactures 
and sells in the United States glass containers used for food and 
beverage packaging and employs workers at multiple facilities within 
the United States for this purpose. Lynx LP is the indirect owner of 
100% of the outstanding shares of Anchor, and Lynx GP is the general 
partner of Lynx LP.
    The consent agreement settles charges that Anchor violated Section 
5 of the Federal Trade Commission Act, 15 U.S.C. 45, through its use of 
post-employment covenants not to compete (``Non-Compete 
Restrictions''). A Non-Compete Restriction is a term that, after a 
worker has ceased working for an employer, restricts the worker's 
freedom to accept employment with a competing business, to form a 
competing business, or otherwise to compete with the employer.
    The complaint alleges Anchor imposed Non-Compete Restrictions on 
employees across a variety of positions, including workers whose labor 
is an important input in the glass container manufacturing process. The 
complaint alleges this conduct has a tendency or likelihood to limit 
workers' mobility, to impede rivals' access to the restricted 
employees' labor, and thus to harm workers, consumers, competition, and 
the competitive process. As such, the complaint alleges Anchor has 
engaged in an unfair method of competition in violation of Section 5 of 
the FTC Act. The proposed order has been placed on the public record 
for 30 days in order to receive comments from interested persons. 
Comments received during this period will become part of the public 
record. After 30 days, the Commission will again review the consent 
agreement and the comments received and will decide whether it should 
withdraw from the consent agreement and take appropriate action or make 
the proposed order final.
    The purpose of this analysis is to facilitate public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the complaint, the consent agreement, or the proposed 
order, or to modify their terms in any way.

II. The Complaint

    The complaint makes the following allegations. The glass containers 
Anchor manufactures and sells are purchased primarily by companies that 
sell food, beer, non-alcoholic beverages, and wine and spirits. The 
glass container industry in the United States is highly concentrated 
and is characterized by substantial barriers to entry and expansion. 
Among these barriers, it is difficult to identify and employ personnel 
with skills and experience in glass container manufacturing.
    Anchor has imposed Non-Compete Restrictions on employees across a 
variety of positions. These restrictions typically required that, for 
one year following the conclusion of the worker's employment with the 
Anchor, the worker may not be employed by a competing business in the 
United States. At the outset of the Commission's investigation, over 
300 employees of Anchor were subject to such restrictions, including 
employees who work with the glass container plants' furnaces and 
forming equipment and in other glass production, engineering, and 
quality assurance roles.
    The complaint further alleges Anchor's use of the challenged Non-
Compete Restrictions has the tendency or likely effect of harming 
competition, consumers, and workers, including by: (i) impeding the 
entry and expansion of rivals in the glass container industry, (ii) 
reducing employee mobility, and (iii) causing lower wages and salaries, 
reduced benefits, less favorable working conditions, and personal 
hardship to employees.

III. Legal Analysis

    Section 5 of the FTC Act prohibits ``unfair methods of 
competition.'' \1\ Congress empowered the FTC to enforce Section 5's 
prohibition on ``unfair methods of competition'' to ensure the 
antitrust laws could adapt to changing circumstances and to address the 
full range of practices that may undermine competition and the 
competitive process.\2\ The Commission and federal courts have 
historically interpreted Section 5 to prohibit conduct that is 
inconsistent with the policies or the spirit of the antitrust laws, 
even if that conduct would not violate the Sherman or Clayton Acts.\3\
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    \1\ 15 U.S.C. 45(a).
    \2\ E.g., Atl. Refining Co. v. FTC, 381 U.S. 357, 367 (1965) 
(``The Congress intentionally left development of the term `unfair' 
to the Commission rather than attempting to define the many and 
variable unfair practices which prevail in commerce.'') (internal 
citations and quotation marks omitted); see also Fed. Trade Comm'n, 
Policy Statement Regarding the Scope of Unfair Methods of 
Competition Under Section 5 of the Federal Trade Commission Act, 
Commission File No. P221202 (Nov. 10, 2022) [hereinafter ``FTC 
Section 5 Policy Statement (2022)''], at 5 (``Congress struck an 
intentional balance when it enacted the FTC Act. It allowed the 
Commission to proceed against a broader range of anticompetitive 
conduct than can be reached under the Clayton and Sherman Acts, but 
it did not establish a private right of action under Section 5, and 
it limited the preclusive effects of the FTC's enforcement actions 
in private antitrust cases under the Sherman and Clayton Acts.'').
    \3\ E.g., FTC v. Motion Picture Advert. Serv. Co., 344 U.S. 392, 
394-95 (1953) (``The `Unfair methods of competition', which are 
condemned by [Section] 5(a) of the [FTC] Act, are not confined to 
those that were illegal at common law or that were condemned by the 
Sherman Act. Congress advisedly left the concept flexible to be 
defined with particularity by the myriad of cases from the field of 
business.'') (internal citations omitted); Fashion Originators' 
Guild of Am. v. FTC, 312 U.S. 457, 463 (1941) (Commission may 
``suppress'' conduct whose ``purpose and practice . . . runs counter 
to the public policy declared in the Sherman and Clayton Acts''); 
FTC v. Brown Shoe, 384 U.S. 316, 321 (1966) (Commission's power 
reaches ``practices which conflict with the basic policies of the 
Sherman and Clayton Acts even though such practices may not actually 
violate these laws''); E.I. du Pont de Nemours & Co. v. FTC (Ethyl), 
729 F.2d 128, 136-37 (2d Cir. 1984) (Commission may bar ``conduct 
which, although not a violation of the letter of the antitrust laws, 
is close to a violation or is contrary to their spirit''); see also 
FTC v. Ind. Fed'n of Dentists, 476 U.S. 447, 454 (1986); FTC v. 
Sperry & Hutchinson Co., 405 U.S. 233, 244 (1972); FTC v. R.F. 
Keppel & Bros., Inc., 291 U.S. 304, 309-10 (1934).
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    The Commission's recent Section 5 Policy Statement describes the 
most significant general principles concerning whether conduct is an 
unfair method of competition.\4\ A person violates Section 5 by (1) 
engaging in a method of competition (2) that is unfair--i.e., conduct 
that ``goes beyond competition on the merits.'' \5\ A method of 
competition is ``conduct undertaken by an actor in the marketplace'' 
that implicates competition, whether directly or indirectly.\6\ Conduct 
is unfair if (a) it is ``coercive, exploitative, collusive, abusive, 
deceptive, predatory,'' ``involve[s] the use of economic power of a 
similar nature,'' or is ``otherwise restrictive and

[[Page 16979]]

exclusionary,'' and (b) ``tend[s] to negatively affect competitive 
conditions'' for ``consumers, workers, or other market participants''--
for example by impairing the opportunities of market participants, 
including potential entrants; interfering with the normal mechanisms of 
competition; limiting choice; reducing output; reducing innovation; or 
reducing competition between rivals.\7\ The two parts of this test for 
unfairness ``are weighed according to a sliding scale'': where there is 
strong evidence for one part of the test, ``less may be necessary'' to 
satisfy the other part.\8\ In appropriate circumstances, conduct may be 
condemned under Section 5 without defining a relevant market, proving 
market power, or showing harm through a rule of reason analysis.\9\
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    \4\ FTC Section 5 Policy Statement (2022), supra note 2.
    \5\ Id. at 8-10.
    \6\ Id. at 8.
    \7\ Id. 8-10.
    \8\ Id. at 9.
    \9\ Id. at 10.
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    In addition, the Commission may consider any asserted 
justifications for a particular practice.\10\ Any such inquiry would 
focus on ``[t]he nature of the harm'' caused by the method of 
competition: ``the more facially unfair and injurious the harm, the 
less likely it is to be overcome by a countervailing justification of 
any kind.'' \11\ Unlike ``a net efficiencies test or a numerical cost-
benefit analysis,'' this analysis examines whether ``purported benefits 
of the practice'' redound to the benefit of other market participants 
rather than the respondent.\12\ Established limits on defenses and 
justifications under the Sherman Act ``apply in the Section 5 context 
as well,'' including that the justifications must be cognizable, non-
pretextual, and narrowly tailored.\13\
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    \10\ Id. at 10-12 (``There is limited caselaw on what, if any, 
justifications may be cognizable in a standalone Section 5 unfair 
methods of competition case, and some courts have declined to 
consider justifications altogether.'').
    \11\ Id. at 11.
    \12\ Id.
    \13\ Id. at 11-12.
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    As described below, the factual allegations in the complaint would 
support concluding that Anchor's use of the challenged Non-Compete 
Restrictions is an unfair method of competition under Section 5.
    First, Anchor's use of Non-Compete Restrictions is a method of 
competition. The challenged Non-Compete Restrictions are not mere 
``condition[s] of the marketplace, not of the respondent's making.'' 
\14\ Rather, these are contract provisions Anchor required its 
employees to enter into, which, by their terms, restricted the 
employment options available to affected workers and therefore 
implicated competition for labor.
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    \14\ See id. at 8.
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    Second, Anchor's use of the challenged Non-Compete Restrictions 
``goes beyond competition on the merits'' \15\ because it is coercive, 
exploitative, exclusionary, and restrictive as these terms are used in 
the FTC Section 5 Policy Statement. Non-Compete Restrictions typically 
result from employers' outsized bargaining power compared to that of 
employees. And, by reducing workers' negotiating leverage vis-[agrave]-
vis their current employers, Non-Compete Restrictions tend to impair 
workers' ability to negotiate for better pay and working 
conditions.\16\ The complaint here also alleges the challenged Non-
Compete Restrictions had a tendency or likely effect of impeding the 
entry and expansion of rivals, as discussed below. As such, they are 
exclusionary in a manner that violates the spirit and policies of the 
Sherman Act.\17\ Finally, while competition on the merits ``may 
include, for example . . . attracting employees and workers through the 
offering of better employment terms,'' \18\ Non-Compete Restrictions, 
by contrast, create a legal impediment that restricts workers from 
leaving their employment even if they find more attractive employment 
terms elsewhere. For this reason, Non-Compete Restrictions have long 
been considered proper subjects for scrutiny under the nation's 
antitrust laws.\19\
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    \15\ See id. at 8.
    \16\ See, e.g., Dep't of the Treasury, Report, Non-compete 
Contracts: Economic Effects and Policy Implications (Mar. 2016) at 
10, https://home.treasury.gov/system/files/226/Non_Compete_Contracts_Econimic_Effects_and_Policy_Implications_MAR2016.pdf (``When workers are legally prevented from accepting 
competitors' offers, those workers have less leverage in wage 
negotiations [with their current employer.]''). The strength of a 
worker's negotiating position with their current employer is largely 
based on the suitability of their next-best alternative employer 
(i.e., the alternative employer that would offer the employee the 
best combination of wages and working conditions, net of any 
switching costs). Competing employers who fall within the scope of a 
Non-Compete Agreement, typically employers in the same industry and 
geographic area--are often the strongest competitor to a worker's 
current employer for that worker's labor. Such employers typically 
place the highest value on the worker's industry-specific skills, 
and workers generally face lower switching costs when moving to such 
employers. See, e.g., David J. Balan, Labor Non-Compete Agreements: 
Tool for Economic Efficiency, or Means to Extract Value from 
Workers? 15 (2021), https://equitablegrowth.org/working-papers/labor-non-compete-agreements-tool-for-economic-efficiency-or-means-to-extract-value-from-workers/ (noting workers often ``are barred by 
the non-compete from [switching to] the[ir] best available 
alternative jobs'').
    \17\ See generally, e.g., ZF Meritor v. Easton Corp., 696 F.3d 
254, 278-79 (3d Cir. 2012); McWane, Inc. v. Fed. Trade Comm'n, 783 
F.3d 814, 835 (11th Cir. 2005); Tampa Elec. Co. v. Nashville Coal 
Co., 365 U.S. 320, 328 (1961); Geneva Pharms. Tech. Corp. v. Barr 
Labs., 386 F.3d 485, 509 (2d Cir. 2004); see also FTC Section 5 
Policy Statement (2022), supra note 2, at 8, 9, 12.
    \18\ FTC Section 5 Policy Statement (2022), supra note 2, at 8-
9.
    \19\ See, e.g., U.S. v. Am. Tobacco Co., 221 U.S. 106 (1911); 
Newburger, Loeb & Co., Inc. v. Gross, 563 F.2d 1057, 1082 (2d Cir. 
1977); Bradford v. N.Y. Times Co., 501 F.2d 51 (2d Cir. 1974); 
Golden v. Kentile Floors, Inc., 512 F.2d 838 (5th Cir. 1975); U.S. 
v. Empire Gas Corp., 537 F.2d 296 (8th Cir. 1976); Aydin Corp. v. 
Loral Corp., 718 F.2d 897 (9th Cir. 1983); Consultants & Designers, 
Inc. v. Bulter Serv. Grp., Inc., 720 F.2d 1553 (11th Cir. 1983).
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    Third, the factual allegations in the complaint support a finding 
that Anchor's challenged conduct has the tendency or likely effect of 
negatively affecting competition in the U.S. glass container industry. 
Specifically, the complaint alleges that (i) Anchor required employees 
across a variety of positions, including salaried employees who work 
with the glass container plants' furnace and forming equipment and in 
other glass production, engineering, and quality assurance roles, to 
refrain from working for competing glass manufacturing companies for at 
least one year after the conclusion of their employment, (ii) the 
ability to identify and employ personnel with skill and experience in 
glass container manufacturing is a substantial barrier to entry and 
expansion, and (iii) the challenged restrictions have a tendency or 
likely effect of impeding the entry and expansion of rivals.
    Fourth, the factual allegations in the complaint support a finding 
that Anchor's challenged conduct has the tendency or likely effect of 
negatively affecting competitive conditions affecting workers in the 
U.S. glass container industry. In well-functioning labor markets, 
workers compete to attract employers, and employers compete to attract 
workers. For example, workers may attract potential employers by 
offering different skills and experience levels. Employers may attract 
potential employees by offering higher wages, better hours, a more 
convenient job location, more autonomy, more benefits, or a different 
set of job responsibilities. Because factors beyond price (wages) are 
important to both workers and employers in the job context, labor 
markets are ``matching markets'' as opposed to ``commodity markets.'' 
\20\
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    \20\ See generally David H. Autor, Wiring the Labor Market, 15 
J. of Econ. Perspectives 25-40 (2001); Enrico Moretti, Local Labor 
Markets, in 4b Handbook of Labor Economics 1237-1313 (2011).
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    In general, in matching markets, higher-quality matches tend to 
result when both sides--here, workers and employers--have more options 
available

[[Page 16980]]

to them.\21\ Having more options on both sides could, for example, 
allow for matching workers with jobs in which their specific skills are 
more valued, the hours demanded better fit their availability, or their 
commutes are shorter and more efficient. Matches could also be better 
in that various employers' compensation packages, which differ in terms 
of pay and benefits, are coupled with employees who value those 
offerings more and will, for example, tend to stay at those jobs longer 
as a result. Competition for labor allows for job mobility and benefits 
workers by allowing them to accept new employment, create or join new 
businesses, negotiate better terms in their current jobs, and generally 
pursue career advancement as they see fit.\22\
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    \21\ See, e.g., Dep't of the Treasury, Report, The State of 
Labor Market Competition (Mar. 7, 2022) at 5-7, https://home.treasury.gov/system/files/136/State-of-Labor-Market-Competition-2022.pdf; Dep't of the Treasury, Report, Non-compete 
Contracts: Economic Effects and Policy Implications, supra note 16, 
at 3-5, 22-23.
    \22\ See, e.g., Cynthia L. Estlund, Between Rights and Contract: 
Arbitration Agreements and Non-Compete Covenants As A Hybrid Form of 
Employment Law, 155 U. Pa. L. Rev. 379, 407 (2006).
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    By preventing workers and employers from freely choosing their 
preferred jobs and candidates, respectively, Non-Compete Restrictions 
tend to impede and undermine competition in labor markets.\23\ Research 
suggests Non-Compete Restrictions measurably reduce worker 
mobility,\24\ lower workers' earnings,\25\ and increase racial and 
gender wage gaps.\26\ At the individual level, a Non-Compete 
Restriction can force a worker who wishes to leave a job into a 
difficult choice: stay in the current position despite being able to 
receive a better job elsewhere, take a position with a competitor at 
the risk of being found out and sued, or leave the industry entirely. 
In this way, Non-Compete Restrictions tend to leave workers with fewer 
and lower-quality competing job options,\27\ thereby reducing workers' 
bargaining leverage with their current employers and resulting in lower 
wages, slower wage growth, and less favorable working conditions.\28\
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    \23\ See, e.g., Dep't of the Treasury, Report, The State of 
Labor Market Competition, supra note 21, at 5-7.
    \24\ Matthew S. Johnson, Kurt Lavetti, & Michael Lipsitz, The 
Labor Market Effects of Legal Restrictions on Worker Mobility 2 
(2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3455381; 
Evan Starr, J.J. Prescott, & Norm Bishara, The Behavioral Effects of 
(Unenforceable) Contracts, 36 J. L., Econ., & Org. 633, 652 (2020); 
Evan Starr, Justin Frake, & Rajshree Agarwal, Mobility Constraint 
Externalities, 30 Org. Sci. 961, 963-65, 977 (2019); Matt Marx, 
Deborah Strumsky, & Lee Fleming, Mobility, Skills, and the Michigan 
Non-Compete Experiment, 55 Mgmt. Sci. 875, 884 (2009).
    \25\ Michael Lipsitz & Evan Starr, Low-Wage Workers and the 
Enforceability of Noncompete Agreements, 68 Mgmt. Sci. 143, 144 
(2021); Johnson, Lavetti, & Lipsitz, supra note 24.
    \26\ Johnson, Lavetti, & Lipsitz, supra note 24.
    \27\ See, e.g., Jessica Jeffers, The Impact of Restricting Labor 
Mobility on Corporate Investment and Entrepreneurship 21-22 (Dec. 
24, 2019), https://ssrn.com/abstract=3040393.
    \28\ See, e.g., Johnson, Lavetti, & Lipsitz, supra note 24; 
David J. Balan, Labor Practices Can be an Antitrust Problem Even 
When Labor Markets are Competitive, CPI Antitrust Chronicle (May 
2020) at 8.
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    Here, the complaint alleges the challenged Non-Compete Restrictions 
have the tendency or likely effect of reducing employee mobility and 
causing lower wages and salaries, reduced benefits, less favorable 
working conditions, and personal hardship to employees.
    Finally, as the complaint alleges, any legitimate objectives of 
Anchor's use of the challenged Non-Compete Restrictions could be 
achieved through significantly less restrictive means, including, for 
example, by entering confidentiality agreements that prohibit employees 
and former employees from disclosing company trade secrets and other 
confidential information. Indeed, Anchor nullified the challenged Non-
Compete Restrictions after learning of the Commission's investigation, 
apparently without incurring any notable impediment to their ability to 
achieve any legitimate business objectives.

IV. Proposed Order

    The proposed order seeks to remedy the Anchor's unfair methods of 
competition. Section II of the proposed order prohibits the Respondents 
from entering or attempting to enter, maintaining or attempting to 
maintain, or enforcing or attempting to enforce a Non-Compete 
Restriction with an Employee, or communicating to an Employee or a 
prospective or current employer of that Employee that the Employee is 
subject to a Non-Compete Restriction.\29\ Paragraph IV.A requires the 
Respondents to take all steps necessary to void and nullify all 
existing Non-Compete Restrictions with Employees within 30 days after 
the date on which the proposed order is issued.\30\
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    \29\ See Decision & Order ] II.
    \30\ Id. ] IV.A.
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    The proposed order also contains provisions designed to ensure 
compliance. Paragraph III.A of the proposed order requires the 
Respondents to provide written notice to Employees that have or 
recently had a Non-Compete Restriction that (i) the restriction is null 
and void, and (ii) the Employees may, after they stop working for 
Anchor, seek or accept jobs with any other company or person, run their 
own businesses, and compete with the Anchor.\31\ Paragraph III.B 
requires Respondents to notify new Employees that they will not be 
subject to Non-Compete Restrictions by including a specified notice in 
the documentation provided to new Employees upon hire.\32\
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    \31\ Id. ] III.A; App'x B.
    \32\ Id. ] III.B.
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    Other paragraphs contain standard provisions regarding compliance 
reports, notice of changes in Respondents, and access for the FTC to 
documents and personnel.\33\ The proposed order's prohibitions apply 
only to Respondents' Employees within the United States, and the term 
of the proposed order is twenty years.\34\
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    \33\ Id. ]] IV-VII.
    \34\ Id. ] IX.

    By direction of the Commission, Commissioner Wilson dissenting.
April J. Tabor,
Secretary.

Dissenting Statement of Commissioner Christine S. Wilson

    Today, the Commission announced that it has accepted, subject to 
final approval, another consent agreement with a company in the glass 
container industry. The consent resolves allegations that the use of 
non-compete agreements in employee contracts constitutes an unfair 
method of competition that violates Section 5 of the FTC Act. This case 
against Anchor Glass follows law enforcement actions announced in 
January 2023 involving two other industry participants, O-I Glass and 
Ardagh Group.\1\ Today's case involves a similar fact pattern and 
suffers from the same flaws as those earlier cases. For the same 
reasons that I dissented in those cases,\2\ I dissent here.
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    \1\ See In the Matter of O-I Glass, Inc., FTC File No. 211-0182 
(Jan. 4, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/2110182o-iglasscomplaint.pdf; In the Matter of Ardagh Group S.A., 
FTC File No. 211-0182, https://www.ftc.gov/system/files/ftc_gov/pdf/2110182ardaghcomplaint.pdf.
    \2\ Dissenting Statement of Commissioner Christine S. Wilson, In 
the Matter of O-I Glass, Inc. and In the Matter of Ardagh Group 
S.A., FTC File No. 211-0182 (Jan. 4, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/wilsondissenting-statement-glass-container-cases.pdf.
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    Like the January 2023 actions, this case reflects the approach of 
the new Section 5 Policy Statement.\3\ It alleges

[[Page 16981]]

that the use of non-compete agreements has a tendency to harm 
competition and workers, but fails to provide facts to support the 
hypothesized outcome. Similar to the Commission's complaints against O-
I Glass and Ardagh Group, the complaint against Anchor Glass suffers 
from several omissions. It does not allege that the company's non-
compete provisions are unreasonable based on their temporal length, 
subject matter, or geographic scope; neither does it allege that the 
non-compete clauses were enforced. The complaint does not make factual 
allegations regarding the inability of a competing rival in the glass 
container industry to enter or expand. While the complaint alleges that 
the non-compete clauses reduce employee mobility, thereby leading to 
lower wages, reduced benefits, and less favorable working conditions, 
the complaint does not identify a relevant market for particular types 
of labor and fails to allege a market effect on wages or other terms of 
employment.
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    \3\ 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/p221202sec5enforcementpolicystatement_002.pdf; Christine 
S. Wilson, 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.
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    For the reasons outlined here and explained in detail in my January 
2023 statement, I dissent.

[FR Doc. 2023-05701 Filed 3-20-23; 8:45 am]
BILLING CODE 6750-01-P