Last week the Federal Trade Commission began to argue its case against Facebook, in which it contends the corporation broke the law when it purchased two of its main competitors — Instagram and WhatsApp — in 2012 and 2014. The first days of the trial before U.S. District Judge James Boasberg in Washington saw testimony from Facebook CEO Mark Zuckerberg, former COO Sheryl Sandberg, and Instagram co-founder Kevin Systrom. If successful, the FTC will likely force Facebook to spin off both networks.

This trial is a big deal for U.S. democracy broadly, and for our team at OMI specifically. We were the first, for instance, to call for the break up of the corporation. We also continue to believe that Facebook’s enormous power to determine how people share news and information, and what they read and who they are forced to engage with, poses a direct and even dire threat to our democracy and to the wellbeing of many of our society’s most vulnerable citizens, including children. 

The lawsuit was first filed December 9, 2020, by the FTC along with 46 U.S. states. At the time, New York Attorney General Tish James said the decision to ask for the breakup of the corporation was based on earlier successful antitrust cases against AT&T and Microsoft. The action was also strongly supported by key members of Congress from both parties. A DC Circuit Court panel later ruled that the states had waited too long to file the case

We at OMI are extremely proud of the entire community at the FTC for work on this case the last five years. This includes the original 2020 vote by FTC Chair Joe Simons, and commissioners Rebecca Slaughter and Rohit Chopra to bring the case. And it includes the careful preparation of the case by a team under the direction of Chair Lina Khan. and now it includes the vigorous argument of the case by litigators working for Chair Andrew Ferguson.

For the time being, however, our team is taking care not to overstate our expectations for how the lawsuit will ultimately be resolved. When Congress established the FTC in 1914 it made clear that it intended the agency to operate entirely independent of the wishes and political interests of the sitting president. The Supreme Court then ratified this independence in a 9-0 decision in 1935.

Since taking office in January, however, President Trump and his team has repeatedly directly challenged the FTC’s independence. In mid March, he illegally fired the two Democratic commissioners, Rebecca Slaughter and Alvaro Bedoya. Shortly before the trial began, he called an unprecedented meeting in the White House to discuss whether to settle the case. Last August, when still a candidate, Trump wrote that Zuckerberg would “spend the rest of his life in prison” if he interfered in the election, then later bragged that he had forced the Facebook CEO to change how Facebook operates. 

We know that many Republicans and independents strongly support the break up of Facebook, as well as the imposition of stronger rules limiting the corporation’s ability to manipulate debate and censor speech. This includes many who work in the White House. At OMI we strongly hope the administration allows the FTC’s team to see the trial to its conclusion, and if victorious, to work with the Court to break up this extremely dangerous corporation.

Earlier this year, competition authorities in the UK and Portugal fined companies for anticompetitive practices in their treatment of workers. The two decisions cement a major change in practice in Europe, where antitrust enforcers have generally steered clear of involvement in labor markets. The moves follow a landmark ban by the U.S. Federal Trade Commission on non-compete agreements, first proposed in January 2023.

In early April, the UK Competition Authority imposed fines of £4 million on sports broadcasters for exchanging sensitive information concerning freelance workers. In February, the Portuguese Competition Authority fined three companies €3 million each for bilateral no-poach agreements.

Margrethe Vestager, who oversaw competition enforcement for the European Commission for a decade until last year, first began to warn against wage-fixing and no-poach agreements in 2021. That same year, the Portuguese competition authority issued the first comprehensive EU report on these two issues, drawing from U.S. practice.

This increased focus on using antitrust tools to protect European workers comes at a time when the United States under President Trump appears to be backtracking from the advances made under President Biden.

The FTC’s landmark ban of non-compete provisions is facing two legal challenges and last month, the FTC filed motions to stay proceedings arguing that it needs time to reconsider the defense of the rule. Such an action suggests the Commission will stop defending the rule, which should come as no surprise given that new FTC Chair Andrew Ferguson strongly opposed the rule as a sitting commissioner last year.

Such a retreat would be a huge setback for workers and entrepreneurs in the U.S. Tens of millions of Americans are bound by non-compete clauses. These contractual provisions prevent workers from leaving their existing job for a better employment opportunity.

U.S. federal antitrust agencies have been trailblazers in enforcing competition laws to protect working people. In 2016, the FTC and Department of Justice issued guidelines explicitly saying that horizontal agreements in the form of wage-fixing and no-poach agreements were not only illegal but particularly harmful to workers. They also made clear that any exchange of sensitive information among potential employers of the same person could be considered as unlawful. Several years later, the FTC expanded the range of illegal practices to non-compete provisions in employment contracts.

The move to cover non-compete restrictions followed a broad organizing effort led by Open Markets in 2019, including the creation of a public interest coalition. Thankfully, several U.S. states have passed or are considering bills to ban non-compete provisions in employment contracts. Legislatures in New York and Vermont proposed bills early this year and Wyoming passed a new law last month.

On the other side of the Atlantic, EU countries are currently focusing on conducts that are considered most harmful to the rights and wellbeing of workers, especially no-poach and wage-fixing agreements and the exchange of sensitive information among rival employers.

In 2024, the European Commission published a policy brief highlighting the concentration of EU labor markets and the risk of market power reinforcement through no-poach and wage-fixing. It also announced two ongoing investigations in 2024. The same year, the UK Competition Authority released its own report on competition and market power in labor markets.

More European actions are in the works. The Swiss Authority is expected to publish its guidelines on this issue later this year. And the European Commission could impose its first fine based on illegal labor restrictions, a decision that would set a powerful precedent for European national regulators.

Despite these developments, few European countries have yet taken on the issue of non-compete provisions in employment contracts. This is despite clear evidence that such restrictions hurt workers by keeping wages low and trapping them in jobs they would prefer to leave. Recent studies in the Netherlands and the UK show that the freedoms of roughly 20% of all employees in these countries are restricted by non-compete provisions.

Even if the U.S. retreats from enforcement of the non-compete ban, it is vital that EU member states and the European Commission press forward with their efforts to liberate workers from these restraints on their freedom to find better jobs, or simply to get away from bad bosses.