UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

Dissenting Statement of Commissioner Christine S. Wilson 

In the Matter of Prudential Security 

File No. 211-0026 

January 4, 2023 

Today, the Commission announced that it has accepted, subject to final approval, a consent 

agreement with Prudential Security, Inc. The consent resolves allegations that the use of noncompete agreements in employee contracts constitutes an unfair method of competition that 

violates Section 5 of the FTC Act. This case, which alleges a stand-alone violation of Section 5, 

is one of the first to employ the approach that the recently issued Section 5 Policy Statement0F

1 

describes. For the reasons explained below, I dissent. 

One point is worth emphasizing: my vote to oppose issuance of the complaint does not mean that 

I endorse or condone the conduct of Prudential Security. The company required its security 

guards to sign non-compete agreements that prohibited employees from accepting employment 

with a competing business for two years following conclusion of their employment with 

Prudential. Moreover, a liquidated damages provision required employees to pay Prudential 

$100,000 for violations of the non-compete agreement. Based on these facts, it seems appropriate 

that a Michigan state court found that the non-compete agreements were unreasonable and

2 unenforceable under state law.1F

Instead, my vote reflects my continuing disagreement with the new Section 5 Policy Statement 

and its application to these facts. When it was issued, I expressed concern that the Policy 

Statement would be used to condemn conduct summarily as an unfair method of competition 

based on little more than the assignment of adjectives.2F

3 Unfortunately, that is the approach taken 

in this case. 

The Complaint offers no evidence of anticompetitive effect in any relevant market. According to 

the Complaint, Prudential’s use of non-compete agreements “has harmed employees” by limiting 

1 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. 

2 Complaint ¶ 22. 

3 See Christine S. Wilson, Comm’r, Fed. Trade Comm’n, 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. 
 

 

 

 

 

 

 

their ability to work for other firms in the security guard industry.3F

4 It asserts that Prudential’s use 

of non-compete agreements is “coercive and exploitative” and “tends to negatively affect 

competition conditions”4F

5 – but it appears that those “competition conditions” pertain only to 

individual employees. Similarly, the Complaint offers only a conclusory assertion that “[a]ny 

possible legitimate objectives . . . could have been achieved through significantly less restrictive 

means, including . . . confidentiality agreements that prohibited disclosure of any confidential 

information.”5F

6 This assertion is unsubstantiated. 

Another aspect of the case also concerns me. This enforcement action is designed not to provide 

effective relief but instead to signal activity with respect to non-compete agreements in the 

employment arena. As the Complaint describes, Prudential sold the bulk of its security guard 

business to another security guard company, Titan Security Group. The former Prudential 

security guards who now work for Titan are not subject to non-compete agreements.6F

7 Moreover, 

now that Prudential no longer provides security guard services, there is no reason for the 

company to seek to enforce non-compete agreements against former Prudential security guards 

who did not move to Titan. 

I wish it were accurate to say that this case (with apologies to Shakespeare) is a tale of sound and 

fury, signifying nothing. Unfortunately, it has great significance: it foreshadows how the 

Commission will apply the new Section 5 Policy Statement. Practices that three unelected 

bureaucrats find distasteful will be labeled with nefarious adjectives and summarily condemned, 

with little to no evidence of harm to competition. I fear the consequences for our economy, and 

for the FTC as an institution. 

4 Complaint ¶¶ 23, 25. 

5 Complaint ¶ 29. 

6 Complaint ¶ 26. 

7 Complaint ¶ 16.