The use of non‑compete provisions and other restrictive covenants, such as client, investor and employee non-solicitation covenants, has long been an important tool used by fund managers to protect confidential information, trade secrets, valuable client relationships and goodwill. Such covenants, proponents argue, create incentives for employers to invest in key employees and to promote stability in relationships between investors and advisers. Increasingly vocal detractors, on the other hand, assert that such covenants stymie employee mobility and depress wages. On January 5, 2023, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking (Proposed Rule) that, if implemented, would prohibit the use of non-compete clauses with employees in virtually all circumstances. In a guest article, Dechert attorneys J. Ian Downes and Jeffrey W. Rubin discuss the FTC’s Proposed Rule; the backdrop against which it was raised; the challenges to enacting the Proposed Rule in its current form; and the steps that asset managers should consider now in the face of legal headwinds that, at the very least, seem likely to lead to increasing scrutiny of the use of restrictive covenants. For additional insights from Downes and Rubin, see “Legal and Practical Impact on Fund Managers of New Federal Law Ending Forced Arbitration of Sexual Harassment and Assault Claims
” (May 10, 2022).