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President Biden Targets Non-Compete Agreements in New Executive Order on Promoting Competition | Faegre Drinker Biddle & Reath LLP
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Montana Ag Network: executive order addresses competition in agriculture
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What Does President Biden s Executive Order on Promoting Competition in the American Economy Mean for Employer Noncompete Clauses? Monday, July 12, 2021
EXECUTIVE ORDER ON PROMOTING COMPETITION IN THE AMERICAN ECONOMY
On 9 June 2021, President Biden signed the Executive Order on Promoting Competition in the American Economy (the Order). The White House also issued a Fact Sheet detailing key aspects of the Order. The Order expounds on several ideas articulated by President Biden during his 2020 presidential campaign pertaining to the U.S. economy and labor market. Among other things, the Order contains key provisions directed at limiting employers’ use of noncompetition agreements in an effort to encourage competition in the United States labor market. This alert focuses on those provisions.
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20 that a monopolist has “the right to refuse to deal with other firms”
21 unless “the only conceivable rationale or purpose” for the refusal to deal is “to sacrifice short-term benefits in order to obtain higher profits in the long run from the exclusion of competition.”
22 Judge Boasberg concluded that, in order for a refusal to deal claim to be actionable, it “must involve specific instances in which that policy was enforced (i) against a rival with which the monopolist had a previous course of dealing; (ii) while the monopolist kept dealing with others in the market; (iii) at a short-term profit loss, with no conceivable rationale other than driving a competitor out of business in the long run.”