96980 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices 

solicit comment. In determining 

whether to approve a collection of 

information, the Board will consider all 

comments received from the public and 

other agencies. 

During the comment period for this 

proposal, a copy of the proposed PRA 

OMB submission, including the draft 

reporting form and instructions, 

supporting statement (which contains 

more detail about the information 

collection and burden estimates than 

this notice), and other documentation, 

will be made available on the Board’s 

public website at https://

www.federalreserve.gov/apps/ 

reportingforms/review or may be 

requested from the agency clearance 

officer, whose name appears above. On 

the page displayed at the link above, 

you can find the supporting information 

by referencing the collection identifier, 

FR 2231. Final versions of these 

documents will be made available at 

https://www.reginfo.gov/public/do/ 

PRAMain, if approved. 

Request for Comment on Information 

Collection Proposal 

The Board invites public comment on 

the following information collection, 

which is being reviewed under 

authority delegated by the OMB under 

the PRA. Comments are invited on the 

following: 

a. Whether the proposed collection of 

information is necessary for the proper 

performance of the Board’s functions, 

including whether the information has 

practical utility; 

b. The accuracy of the Board’s 

estimate of the burden of the proposed 

information collection, including the 

validity of the methodology and 

assumptions used; 

c. Ways to enhance the quality, 

utility, and clarity of the information to 

be collected; 

d. Ways to minimize the burden of 

information collection on respondents, 

including through the use of automated 

collection techniques or other forms of 

information technology; and 

e. Estimates of capital or startup costs 

and costs of operation, maintenance, 

and purchase of services to provide 

information. 

At the end of the comment period, the 

comments and recommendations 

received will be analyzed to determine 

the extent to which the Board should 

modify the proposal. 

Proposal Under OMB Delegated 

Authority To Extend for Three Years, 

Without Revision, the Following 

Information Collection 

Collection title: Computer-Security 

Incident Notification. 

Collection identifier: FR 2231. 

OMB control number: 7100–0384. 

General description of collection: A 

banking organization is required to 

notify its primary Federal banking 

regulator of any ‘‘computer-security 

incident’’ that rises to the level of a 

‘‘notification incident,’’ as soon as 

possible and no later than 36 hours after 

the banking organization determines 

that a notification incident has occurred 

(see 12 CFR 225.301(b)). A bank service 

provider is required to notify each 

affected banking organization customer 

as soon as possible when the bank 

service provider determines that it has 

experienced a computer-security 

incident, that has caused, or is 

reasonably likely to cause, a material 

service disruption or degradation for 

four or more hours. 

Frequency: Event generated. 

Respondents: U.S. bank holding 

companies, U.S. savings and loan 

holding companies, state member banks, 

U.S. operations of foreign banking 

organizations, Edge or agreement 

corporations, and bank service 

providers. 

Total estimated number of 

respondents: 95. 

Total estimated annual burden hours: 

285. 

Board of Governors of the Federal Reserve 

System, December 2, 2024. 

Benjamin W. McDonough, 

Deputy Secretary and Ombuds of the Board. 

[FR Doc. 2024–28523 Filed 12–5–24; 8:45 am] 

BILLING CODE 6210–01–P 

FEDERAL TRADE COMMISSION 

[File No. 241 0082] 

Guardian Service Industries, Inc.; 

Analysis of Agreement Containing 

Consent Order To Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement; 

request for comment. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

Federal law prohibiting unfair methods 

of competition. The attached Analysis of 

Proposed Consent Order to Aid Public 

Comment describes both the allegations 

in the complaint and the terms of the 

consent order—embodied in the consent 

agreement—that would settle these 

allegations. 

DATES: Comments must be received on 

or before January 6, 2025. 

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: ‘‘Guardian; File No. 

241 0082’’ 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, Mail 

Stop H–144 (Annex H), Washington, DC 

20580. 

FOR FURTHER INFORMATION CONTACT: Erik 

Herron (202–326–3535), 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 § 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 Order 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/newsevents/commission-actions. 

The public is invited to submit 

comments on this document. For the 

Commission to consider your comment, 

we must receive it on or before January 

6, 2025. Write ‘‘Guardian; File No. 241 

0082’’ 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 ‘‘Guardian; 

File No. 241 0082’’ 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, Mail Stop H–144 (Annex H), 

Washington, DC 20580. 

Because your comment will be placed 

on the publicly accessible website at 

https://www.regulations.gov, you are 


lotter on DSK11XQN23PROD with NOTICES1
Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices 96981 

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 § 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 

§ 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 

§ 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 § 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 § 4.9(c), and the General 

Counsel grants that request. 

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 

January 6, 2025. For information on the 

Commission’s privacy policy, including 

routine uses permitted by the Privacy 

Act, see https://www.ftc.gov/siteinformation/privacy-policy. 

Analysis of Agreement Containing 

Consent Order To Aid Public Comment 

I. Introduction 

The Federal Trade Commission 

(‘‘Commission’’) has accepted for public 

comment, subject to final approval, an 

Agreement Containing Consent Order 

(‘‘Consent Agreement’’) with Guardian 

Service Industries, Inc. (‘‘Guardian’’ or 

‘‘Respondent’’). The proposed Decision 

and Order (‘‘Order’’), included in the 

Consent Agreement and subject to final 

Commission approval, is designed to 

remedy the anticompetitive effects that 

have resulted from Guardian’s use of 

restrictive covenants in some of its 

contracts with building owners and 

managers that limit the ability of those 

building owners and managers to solicit 

or hire Respondent’s employees (‘‘NoHire Agreements’’). The term No-Hire 

Agreement refers to a term in an 

agreement between two or more 

companies that restricts, imposes 

conditions on, or otherwise limits a 

company’s ability to solicit, recruit, or 

hire another company’s employees, 

during employment or afterwards, 

directly or indirectly, including by 

imposing a fee or damages in 

connection with such conduct, or that 

otherwise inhibits competition between 

companies for each other’s employees’ 

services. 

The Consent Agreement settles 

charges that Guardian has engaged in 

unfair methods of competition in 

violation of section 5 of the FTC Act, as 

amended, 15 U.S.C. 45, by entering into 

No-Hire Agreements with customers. 

Guardian’s No-Hire Agreements 

constitute unreasonable restraints of 

trade that are unlawful under section 1 

of the Sherman Act, 15 U.S.C. 1, and are 

thus unfair methods of competition in 

violation of section 5 of the FTC Act. 

Independent of the Sherman Act, 

Guardian’s use of the No-Hire 

Agreements constitutes an unfair 

method of competition with a tendency 

or likelihood to harm competition, 

consumers, and employees in the 

building services industry, in violation 

of section 5. 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. 

II. The Respondent 

Guardian is a privately held business 

headquartered in New York, NY. 

Guardian provides facility maintenance 

services, including janitorial, security, 

engineering and operations, pest 

control, lighting and electric, window 

cleaning, concierge, front desk, and 

surface restoration services. Guardian 

employs approximately 2,800 

employees throughout the Northeast, 

New England, and Mid-Atlantic regions. 

The complaint focuses on Guardian’s 

conduct in New York City and Northern 

New Jersey. 

III. The Complaint 

The complaint alleges that Guardian 

sells building services to building 

owners and property management 

companies, primarily consisting of the 

labor of janitors, security guards, 

maintenance workers, and concierge 

desk workers who are directly employed 

by Guardian. These employees perform 

their work at residential and 

commercial buildings in various States, 

but predominantly in New York City 

and Northern New Jersey. The 

complaint also alleges that Guardian 

and its building owner and property 

manager customers are direct 

competitors in labor markets for 

building services workers. These 

include the markets for workers to 

perform concierge, security, janitorial, 

maintenance, and related services. 

As alleged in the complaint, Guardian 

uses standard-form agreements with 

some of its customers that include NoHire Agreements. The No-Hire 

Agreements restrict the ability of 

Guardian’s customers to (1) directly hire 

workers employed by Guardian and (2) 

indirectly hire workers employed by 

Guardian through a competing building 

services contractor after the competitor 

wins the customers’ business away from 

Guardian. These restrictions apply 

during the term of Guardian’s contracts 

and for six months to one year 

thereafter. The No-Hire Agreements 

apply not just to those Guardian 

employees identified by Guardian and 

staffed to provide services for a 

customer, but to all Guardian building 

services employees. 

The complaint alleges that Guardian’s 

No-Hire Agreements are anticompetitive 

because they are horizontal agreements 

among competitors not to compete. 

Guardian and its customer building 

owners and property managers are 

competitors for the labor of building 

services workers like Guardian’s 

employees. The No-Hire Agreements are 

horizontal agreements that prohibit 

buildings and property management 


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96982 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices 

1 Dissenting Statement of Comm’r Melissa 

Holyoak, In the Matter of Chevron Corporation & 

Hess Corporation, Comm’n File No. 241–0008 

(Sept. 30, 2024); Joint Dissenting Statement of 

Comm’r Melissa Holyoak and Comm’r Andrew N. 

Ferguson, In the Matter of ExxonMobil Corporation, 

No. 241–0004 (May 2, 2024). 

2 15 U.S.C. 45(b). 

3Ohio v. Am. Express Co., 585 U.S. 529, 541 

(2018). 

4 Leegin Creative Leather Prods., Inc. v. PSKS, 

Inc., 551 U.S. 877, 886–87 (2007) (citation omitted). 

Chair Khan contends that ‘‘some no-poach or nohire provisions may be analyzed as per se restraints 

under Section 1 of the Sherman Act.’’ Statement of 

Chair Lina M. Khan, In the Matter of Guardian 

Service Industries, Inc., Matter Number 2410082 

(Dec. 3, 2024). First, to be clear, the Complaint in 

today’s action does not allege a per se violation. 

Second, the Seventh Circuit case upon which she 

relies, Deslandes v. McDonald’s USA, LLC, 81 F.4th 

699, 703 (7th Cir. 2023), cert. denied, 144 S. Ct. 

1057 (2024), does not stand for the proposition that 

today’s conduct, or no-hire and no-poach 

provisions more generally, should be condemned as 

per se unlawful. To begin with, the no-poach 

provisions alleged in Deslandes were purely 

horizontal, see id. at 703, lacking the vertical 

component at issue in today’s complaint against 

Guardian. Further, Judge Easterbrook, analyzing a 

motion for judgment on the pleadings, made clear 

that the district court had ‘‘jettisoned the per se rule 

too early.’’ Id. He did not declare that such 

agreements were per se unlawful. In fact, he went 

on to explain a variety of questions that needed to 

be considered before such a determination could be 

made, including, inter alia: ‘‘So what was the nopoach clause doing? Was it protecting franchises’ 

investments in training, or was it allowing them to 

appropriate the value of workers’ own 

investments?’’ Id. at 704. He explained that ‘‘[t]hese 

are all potentially complex questions, which cannot 

be answered by looking at the language of the 

complaint. They require careful economic analysis. 

More than that: the classification of a restraint as 

ancillary is a defense, and complaints need not 

anticipate and plead around defenses.’’ Id. at 705. 

Such considerations are a far cry from declaring nopoach agreements per se unlawful. 

5 Leegin, 551 U.S. at 885; see also Am. Express 

Co., 585 U.S. at 541. 

6Copperweld Corp. v. Indep. Tube Corp., 467 

U.S. 752, 768 (1984). 

companies from hiring building services 

workers, thereby undermining 

competition for labor, reducing worker 

bargaining power, and suppressing 

wages. For these reasons, the complaint 

alleges that the No-Hire Agreements 

constitute unreasonable restraints of 

trade that are unlawful under section 1 

of the Sherman Act, 15 U.S.C. 1, and are 

thus unfair methods of competition in 

violation of section 5 of the FTC Act, as 

amended, 15 U.S.C. 45. 

Independent of the Sherman Act, the 

complaint alleges that Guardian’s 

conduct constitutes an unfair method of 

competition with a tendency or 

likelihood to harm competition, 

consumers, and employees in the 

building services industry, in violation 

of section 5 of the FTC Act. According 

to the complaint, the No-Hire 

Agreements limit the ability of building 

owners and managers to hire Guardian’s 

employees. This harms Guardian’s 

employees because it limits their ability 

to negotiate for higher wages, better 

benefits, and improved working 

conditions. Employees may suffer 

further hardship if the building they 

work at brings services in-house because 

the No-Hire Agreements force them to 

leave their jobs in some circumstances. 

The complaint further alleges that the 

No-Hire Agreements harm building 

owners and managers because they may 

be foreclosed from bringing services inhouse due to the prospect of losing longserving workers with extensive, 

building-specific experience. 

IV. The Proposed Order 

The proposed Order seeks to remedy 

Guardian’s unfair methods of 

competition. Section II of the proposed 

Order prohibits Guardian from entering 

or attempting to enter, maintaining or 

attempting to maintain, enforcing or 

attempting to enforce, or threatening to 

enforce a No-Hire Agreement, or 

communicating to a customer or any 

other person that any Guardian 

Employee is subject to a No-Hire 

Agreement. Paragraph III.A of the 

proposed Order requires Guardian to 

provide written notice to customers that 

are subject to No-Hire Agreements that 

(i) the restriction is null and void, and 

(ii) any customer or a subsequent 

building services contractor for a 

customer is no longer subject to the 

restrictions or penalties related to the 

No-Hire Agreements in Guardian’s 

contracts. Paragraph III.B of the 

proposed Order requires Guardian to 

provide various written notices to 

employees who are subject to a No-Hire 

Agreement. Paragraph III.C requires that 

Guardian post clear and conspicuous 

notice that employees are not subject to 

No-Hire Agreements and may seek or 

accept a job with the building directly, 

or any company that wins the building’s 

business. Paragraphs IV.A and IV.B of 

the proposed Order provide a timeline 

according to which the obligations 

enumerated in Section III must be met. 

Paragraphs IV.C–E set forth Guardian’s 

ongoing compliance obligations. 

Other paragraphs contain standard 

provisions regarding compliance 

reports, requirements for Guardian to 

provide notice to the FTC of material 

changes to its business, and access for 

the FTC to documents and personnel. 

The term of the proposed Order is ten 

years. 

The purpose of this analysis is to 

facilitate public comment on the 

Consent Agreement and proposed Order 

to aid the Commission in determining 

whether it should make the proposed 

Order final. This analysis is not an 

official interpretation of the proposed 

Order and does not modify its terms in 

any way. 

By direction of the Commission, 

Commissioners Holyoak and Ferguson 

dissenting. 

April J. Tabor, 

Secretary. 

Dissenting Statement of Commissioner 

Melissa Holyoak 

As I have previously explained,1 the 

Commission cannot issue a complaint 

unless it has reason to believe that the 

law has been violated.2 The same 

requirement applies equally to 

complaints headed toward litigation and 

to complaints that accompany a consent 

order that simultaneously resolves the 

matter. Today’s Complaint against 

Guardian Service Industries, Inc. fails to 

provide sufficient allegations to 

establish a violation of section 1 of the 

Sherman Act or a violation of section 5 

of the FTC Act. Because the restraint at 

issue is between a building services 

contractor and its clients, it would 

qualify as a vertical restraint, and 

‘‘nearly every . . . vertical restraint’’ 

should be analyzed under the rule of 

reason.3 Further, this is a novel area, 

and the per se rule ‘‘is appropriate only 

after courts have had considerable 

experience with the type of restraint at 

issue, and only if courts can predict 

with confidence that it would be 

invalidated in all or almost all instances 

under the rule of reason.’’ 4 Under the 

rule of reason, ‘‘the factfinder weighs all 

of the circumstances of a case in 

deciding whether a restrictive practice 

should be prohibited as imposing an 

unreasonable restraint on 

competition.’’ 5 To do so, the court 

conducts ‘‘an inquiry into market power 

and market structure designed to assess 

the combination’s actual effect.’’ 6

Today’s Complaint, however, does not 

plead sufficient facts to make a violation 


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Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Notices 96983 

7The Commission’s 2022 Policy Statement states 

that under section 5 of the FTC Act, ‘‘the inquiry 

will not focus on the ‘rule of reason.’’’ See Fed. 

Trade Comm’n, Policy Statement Regarding the 

Scope of Unfair Methods of Competition Under 

Section 5 of the Federal Trade Commission Act, 

Comm’n File No. P221202, at 10 (Nov. 10, 2022); 

id. at 2 (‘‘Congress passed the FTC Act to push back 

against the judiciary’s adoption and use of the 

open-ended rule of reason for analyzing Sherman 

Act claims.’’). I disagree with this conclusion and 

the 2022 Policy Statement in general. See 

Dissenting Statement of Comm’r Christine S. 

Wilson, Regarding the Policy Statement Regarding 

the Scope of Unfair Methods of Competition Under 

Section 5 of the Federal Trade Commission Act, 

Comm’n File No. P221202 (Nov. 10, 2022). Among 

other problems with the statement, section 5 

requires a showing of anticompetitive effects. See 

Boise Cascade Corp. v. FTC, 637 F.2d 573, 579 (9th 

Cir. 1980); cf. E.I. du Pont de Nemours & Co. v. FTC, 

729 F.2d 128, 141 (2d Cir. 1984) (rejecting unfair 

method of competition claim because there was no 

‘‘causal connection’’ between the challenged 

practices and adverse competitive effects); FTC v. 

Raladam Co., 283 U.S. 643, 647–48 (1931). 

8Chair Khan somehow believes that just because 

she, as one agent of the American government, 

declares her choices as helpful to ‘‘American 

workers,’’ that it makes it so. Khan, supra note 4. 

Good intentions do not, however, translate into 

tangible results. And while her rhetoric may make 

for good PR, the facts and the law matter. The 

Chair’s decision to assert that the agreements are 

per se illegal in today’s statement but not in the 

actual Complaint is just one more example where 

the public should rely more on the Chair’s revealed 

preferences than her expressed preferences. 

1 In re Guardian Serv. Indus., Inc., Complaint 

(‘‘Complaint’’) & Decision and Order (‘‘Order’’). 

2Compl. ¶ 1; In re Guardian Serv. Indus., Inc., 

Analysis of Agreement Containing Consent Order to 

Aid Public Comment (‘‘AAPC’’), at 1. 

3AAPC at 1. 

4Compl. ¶ 11. No-hire provisions are not noncompete clauses. No-hire provisions are agreements 

between two or more employers not to recruit, 

solicit, or hire each other’s employees. Noncompete clauses are agreements between an 

employer and its employee in which the employee 

promises not to work for the employer’s 

competitors after the termination of the 

employment relationship. No-hire provisions do not 

fall within the scope of the Commission’s failed 

Non-Compete Clause Rule. 89 FR 38,342 (May 7, 

2024). 

5Compl. ¶¶ 10–11; AAPC at 2. 

6 Ibid. 

7NCAA v. Alston, 594 U.S. 69, 86–87 (2021) 

(explaining that an employee challenging a labormarket restraint need show competitive injury only 

in the market for labor); Anderson v. Shipowners 

Ass’n, 272 U.S. 359, 361–65 (1926) (agreement 

among group of associations that ‘‘own[ed], 

operat[ed], or control[led] substantially all the 

merchant vessels . . . [in] the ports of the Pacific 

Coast’’ to control employment of seamen violated 

the Sherman Act); Todd v. Exxon Corp., 275 F.3d 

191, 201 (2d Cir. 2001) (addressing labor market 

and explaining that ‘‘[t]he Sherman Act . . . applies 

. . . to abuse of market power on the buyer side— 

often taking the form of monopsony or 

oligopsony. . . . Plaintiff is correct to point out 

that a horizontal conspiracy among buyers to stifle 

competition is as unlawful as one among sellers.’’); 

Phillip Areeda & Herbert Hovenkamp, Antitrust 

Law ¶ 352a (rev. ed. 2024) (‘‘employees may 

challenge antitrust violations that are premised on 

restraining the employment market.’’); id. at ¶ 352c 

(‘‘Antitrust law addresses employer conspiracies 

controlling employment terms precisely because 

they tamper with the employment market and 

thereby impair the opportunities of those who sell 

their services there. Just as antitrust law seeks to 

preserve the free market opportunities of buyers 

and sellers of goods, so also it seeks to do the same 

for buyers and sellers of employment services.’’); 

see also Weyerhaeuser Co. v. Ross-Simmons 

Hardwood Lumber Co., Inc., 549 U.S. 312, 322 

(2007) (Thomas, J.) (‘‘The kinship between 

monopoly and monopsony suggests that similar 

legal standards should apply to claims of 

monopolization and to claims of monopsonization.’’ 

(citing Roger Noll, ‘‘Buyer Power’’ and Economic 

Policy, 72 Antitrust L.J. 589, 591 (2005) 

(‘‘[A]symmetric treatment of monopoly and 

monopsony has no basis in economic analysis.’’))); 

Mandeville Island Farms v. Am. Crystal Sugar Co., 

334 U.S. 219, 235 (1948) (‘‘It is clear that the 

agreement is the sort of combination condemned by 

the [Sherman] Act, even though the price-fixing was 

by purchasers, and the persons specially injured 

under the treble damage claim are sellers, not 

customers and consumers.’’). 

8See Dissenting Statement of Comm’r Andrew N. 

Ferguson, Joined by Comm’r Melissa Holyoak, In 

the Matter of the Non-Compete Clause Rule, Matter 

No. P201200, at 18 n.142 (June 28, 2024) 

(hereinafter ‘‘Ferguson Non-Compete Dissent’’), 

https://www.ftc.gov/system/files/ftc_gov/pdf/ 

ferguson-noncompete-dissent.pdf (‘‘Noncompete 

agreements are contracts in restraint of trade, and 

therefore subject to the rule of reason under section 

1 of the Sherman Act and section 5 of the FTC Act. 

But as is true of all agreements that do not implicate 

one of the few per se rules, whether a given 

noncompete agreement violates the antitrust laws 

will turn entirely on the particular circumstances 

and competitive effects of that agreement.’’ (internal 

citations omitted)). 

9 89 FR 38342 (May 7, 2024). 

10Ferguson Non-Compete Dissent at 8–9; Ryan 

LLC v. FTC, No. 3:24–CV–00986–E, 2024 WL 

3879954 (N.D. Tex. Aug. 20, 2024) (vacating the 

Commission’s Non-Compete Clause Rule); 

Properties of the Villages, Inc. v. FTC, 2024 WL 

3870380 (M.D. Fla. Aug. 15, 2024) (issuing a 

preliminary injunction prohibiting enforcement of 

the Commission’s Non-Compete Clause Rule as to 

plaintiff). With the Presidential transition in full 

swing, the Chair has some parting shots. She argues 

that my dissent is part of a ‘‘trend in matters where 

the Commission is protecting American workers.’’ 

Statement of Chair Lina M. Khan, In re Guardian 

Serv. Indus., Inc., Matter No. 2410082, at 2 (Dec. 3, 

2024) (hereinafter ‘‘Chair’s Statement’’). For the 

second time in a couple months, she cites as an 

example of this ‘‘trend’’ my dissent from the NonCompete Clause Rule. Id. at 2 n.6; Statement of 

Chair Lina M. Khan, Joined by Comm’rs Rebecca 

Kelly Slaughter and Alvaro M. Bedoya, In re Lyft, 

Inc., Matter No. 2223028, at 8–9 & n.35 (Oct. 25, 

2024), https://www.ftc.gov/system/files/ftc_gov/pdf/ 

Statement-Chair-Khan-Joined-Comm-SlaughterComm-Bedoya-In-the-Matter-Lyft-Inc-10-25- 

2025.pdf. It bears repeating once more that this rule 

is enjoined nationwide as unlawful, and the BidenHarris Administration will leave office without it 

ever having taken effect. Ryan LLC, 2024 WL 

3879954; Statement of Comm’r Andrew N. 

Ferguson, Concurring in Part and Dissenting in Part, 

United States v. Lyft, Matter No. 2223028, at 14 

(Oct. 25, 2024) (hereinafter ‘‘Ferguson Lyft 

Statement’’), https://www.ftc.gov/system/files/ftc_

gov/pdf/Ferguson-Lyft-Dissent-10-25-2024.pdf. As I 

said in Lyft, I strongly favor protecting workers to 

the fullest extent of our statutory authority. 

Ferguson Lyft Statement at 14. Promulgating failed 

rules and settling cases for pennies on the dollar 

does not protect workers, no matter how 

triumphant the Commission’s press releases are. 

Ibid. 

11Compl. ¶ 16. 

12 Id. ¶ 17. 

13Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006); see 

also Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 

36, 58–59 (1977) (‘‘[D]eparture from the rule-ofreason standard must be based upon demonstrable 

economic effect rather than . . . upon formalistic 

line drawing.’’); Leegin Creative Leather Prods., Inc. 

v. PSKS, Inc., 551 U.S. 877, 899 (2007) (‘‘Resort to 

per se rules is confined to restraints, . . . ‘that 

would always or almost always tend to restrict 

competition and decrease output.’ To justify a per 

Continued 

under the rule of reason plausible.7 For 

this reason, I dissent.8

Dissenting Statement of Commissioner 

Andrew N. Ferguson 

The Commission today issues an 

administrative complaint and accepts a 

proposed consent agreement with 

Guardian Service Industries, Inc. 

(‘‘Guardian’’).1 Guardian is a building 

services contractor operating throughout 

the Northeast, New England, and MidAtlantic regions.2 It employs about 

2,800 workers who provide concierge, 

security, custodial, maintenance, 

engineering, and related services at 

residential and commercial buildings.3

The Complaint alleges that some of 

Guardian’s contracts with buildingmanagement clients contain so called 

‘‘no-hire’’ provisions, also sometimes 

referred to as ‘‘no-poach’’ provisions.4

As written, these provisions forbid 

Guardian’s clients from hiring 

Guardian’s employees directly, or by 

hiring them from one of Guardian’s 

competitors.5 This restriction applies 

both during the contract term and for six 

to twelve months beyond it.6

The Commission is wise to focus its 

resources on protecting competition in 

labor markets. After all, the antitrust 

laws protect employees from unlawful 

restraints of the labor markets as much 

as they protect any output market.7 But, 

as I have warned before, we must 

always act within the boundaries 

Congress has imposed on our authority. 

For example, while I have no doubt that 

some noncompete agreements violate 

the Sherman Act,8 the now-enjoined 

Non-Compete Clause Rule 9 wildly 

exceeded our authority to address 

noncompete agreements.10 Today, we 

again exceed our authority by failing to 

comply with Congress’s procedural 

requirements for issuing an 

administrative complaint. I therefore 

respectfully dissent. 

The Complaint charges that 

Guardian’s no-hire clauses are 

unreasonable restraints of trade under 

section 1 of the Sherman Act,11 and are 

also therefore unfair methods of 

competition in violation of section 5 of 

the Federal Trade Commission Act.12

The Complaint proceeds on a rule-ofreason theory, rather than a per se 

theory. That choice makes sense. The 

rule of reason ‘‘presumptively applies’’ 

to every restraint,13 especially when, as 


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se prohibition a restraint must have ‘manifestly 

anticompetitive’ effects and ‘lack . . . any 

redeeming virtue.’ ’’ (cleaned up)). 

14See, e.g., Aya Healthcare Servs., Inc. v. AMN 

Healthcare, Inc., 9 F.4th 1102, 1109 (9th Cir. 2021) 

(citing Rothery Storage & Van Co. v. Atlas Van 

Lines, Inc., 792 F.2d 210, 224 (D.C. Cir. 1986)). The 

Chair invokes Deslandes v. McDonald’s USA, LLC 

as ‘‘affirm[ing]’’ that ‘‘some no-poach or no-hire 

provisions may be analyzed as per se restraints 

under section 1 of the Sherman Act.’’ Chair’s 

Statement at 2 n.6. That is not quite right. 

Deslandes held only that a properly pleaded per se 

claim challenging no-hire clauses could survive a 

motion to dismiss because ‘‘the classification of a 

restraint as ancillary,’’ and therefore not subject to 

the per se standard, ‘‘is a defense, and complaints 

need not anticipate and plead around defenses.’’ 81 

F.4th 699, 705 (7th Cir. 2023), cert. denied, 144 S. 

Ct. 1057 (2024). Whether a restraint is ancillary, and 

therefore subject to the rule of reason, ‘‘requires 

discovery, economic analysis, and potentially a 

trial.’’ Ibid. 

15See, e.g., GTE Sylvania Inc., 433 U.S. at 49 & 

n.15 (citing Chi. Bd. of Trade v. United States, 246 

U.S. 231, 238 (1918) (Brandeis, J.)); Atl. Richfield 

Co. v. USA Petroleum Co., 495 U.S. 328, 342 (1990); 

Ohio v. Am. Express Co., 585 U.S. 529, 541–42 

(2018). 

16Am. Express Co., 585 U.S. at 542; Alston, 594 

U.S. at 100 (‘‘[A]nticompetitive restraints of trade 

may wind up flunking the rule of reason to the 

extent the evidence shows that substantially less 

restrictive means exist to achieve any proven 

procompetitive benefits.’’). 

17Compl. ¶ 14. Potential procompetitive 

justifications, i.e., legitimate objectives, in these 

circumstances could include Guardian seeking to 

recoup any costs for the training of and investment 

in its workers or for screening and background 

checks to employ these workers, or to protect any 

relevant trade secrets. 

18Matthew Gibson, Employer Market Power in 

Silicon Valley, IZA Discussion Paper No. 14843 

(Nov. 2021), https://docs.iza.org/dp14843.pdf 

(comparing workers’ salaries at Silicon Valley firms 

subject to DOJ’s no-poach investigation to worker 

salaries at other information-technology firms and 

concluding that the challenged no-poach 

agreements reduced salaries at colluding firms by 

4.8%). 

19Cf. Eichorn v. AT&T Corp., 248 F.3d 131 (3d 

Cir. 2001) (challenged no-hire agreement ‘‘not an 

antitrust violation under the rule of reason’’ where 

the particular provision at issue ‘‘did not have a 

significant anti-competitive effect on the plaintiffs’ 

ability to seek employment’’); Aya Healthcare 

Servs., 9 F.4th at 1110 (challenged non-solicitation 

agreement, involving employee outsourcing 

arrangement between healthcare staffing agencies 

collaborating to supply traveling nurses, not 

unlawful under rule of reason where restraint was 

reasonably necessary to ensure neither would lose 

personnel during collaboration); Giordano v. Saks 

Inc., 654 F. Supp. 3d 174, 201 (E.D.N.Y. 2023) 

(challenged no-poach agreement involving 

collaborative business arrangement not unlawful 

under rule of reason where luxury brands agreed 

not to poach Saks employees who were trained to 

sell brand products unless current managers 

consented or the employee had left Saks at least six 

months prior). 

20 15 U.S.C. 45(b). 

21 FTC v. Standard Oil of Cal., 449 U.S. 232, 241 

(1980); Boise Cascade Corp. v. FTC, 498 F. Supp. 

772, 779 (D. Del. 1980). 

22Standard Oil, 449 U.S. at 246 n.14; see also 

AMREP Corp. v. FTC, 768 F.2d 1171, 1177 (10th 

Cir. 1985). 

23The Chair presents this case as a choice 

between Guardian’s no-hire provisions ‘‘remain[ing] 

in place,’’ ostensibly presuming anticompetitive 

effects from their very existence, or continuing the 

investigation. Chair’s Statement at 2. That is not 

correct. I have seen no evidence of actual or 

threatened enforcement of these clauses. And even 

if Guardian did threaten or attempt to enforce such 

provisions, I have seen no evidence that such 

threatened or actual enforcement would violate the 

antitrust laws—the question before the Commission 

when deciding whether to issue a Complaint. The 

Chair’s citation of public comments submitted in 

response to the Commission’s separate, unrelated 

Non-Compete Clause Rule, id. at 2 n.9, does not 

change the facts, or lack thereof, in this matter. 

Moreover, I have no objection to the Commission 

agreeing not to bring an enforcement action so long 

as Guardian agrees not to enforce its no-hire 

provisions—akin to a non-prosecution agreement. 

But if the Commission invokes its power to issue 

a complaint, it must comply with the statute giving 

it that power—including the requirement that we 

have ‘‘reason to believe’’ that section 5 has been 

violated. 

here, the restraint is ancillary to an 

otherwise lawful and primarily vertical 

agreement.14 Under the rule of reason, a 

restraint violates section 1 if the 

anticompetitive effects of the restraint 

outweigh its procompetitive effects.15

Put slightly differently, the rule of 

reason forbids restraints for which the 

procompetitive justifications for the 

restraint could have been achieved 

through ‘‘less anticompetitive means’’ 

than those imposed by the restraint.16

Here, the Complaint alleges that 

‘‘[a]ny legitimate objectives of 

Guardian’s’’ use of the no-hire 

provisions ‘‘could have been achieved 

through significantly less restrictive 

means.’’ 17 This certainly may be true of 

some no-hire agreements. And no-hire 

clauses undoubtedly can have 

anticompetitive effects.18 In some 

circumstances, those anticompetitive 

effects will outweigh the procompetitive 

justifications for a no-hire clause.19

When those facts obtain, the no-hire 

provision violates the Sherman Act. 

But we cannot issue a Complaint 

against a company based solely on a 

theory about hypothetical effects of nohire agreements. To lawfully invoke our 

enforcement authority, we must have a 

‘‘reason to believe’’ that Guardian’s nohire provisions violate section 5, not 

that no-hire provisions generally could 

violate section 5.20 The Commission has 

a ‘‘reason to believe’’ the law has been 

violated only if it has evidence 

sufficient to make the ‘‘threshold 

determination that further inquiry is 

warranted.’’ 21 That reason must be 

‘‘well-grounded’’ in evidence that the 

Commission gleaned from its pre-filing 

investigation.22

Had the Complaint plausibly alleged 

anticompetitive effects outweighing 

procompetitive justifications, I would 

have voted for it. But the Complaint 

alleges nothing about the no-hire 

provisions’ effects. It does not allege 

direct evidence of anticompetitive 

effects, or of indirect, economic 

evidence of anticompetitive effects, like 

market power and harm to competition. 

It does not even allege that Guardian has 

ever tried to enforce any of these 

agreements, nor does it allege that a 

single Guardian customer or worker 

believed Guardian would enforce any of 

these provisions.23 Nor have I seen any 

such evidence that goes unmentioned in 

the Complaint. Indeed, I am at a loss 

about how my colleagues have formed 

their reason to believe that Guardian is 

violating the antitrust laws. 

The Commission ought to protect 

competition in the labor markets, but it 

cannot bend the law to do so. We must 

form a ‘‘well-grounded reason to 

believe’’ that the law has been violated 

before issuing an administrative 

complaint. Because we have no 

evidence of the effects of the no-hire 

agreements in this case, the Commission 

should not have issued this Complaint. 

I respectfully dissent. 

[FR Doc. 2024–28720 Filed 12–5–24; 8:45 am] 

BILLING CODE 6750–01–P 

FEDERAL TRADE COMMISSION 

[File No. 232 3023] 

IntelliVision Technologies Corp.; 

Analysis of Proposed Consent Order 

To Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement; 

request for comment. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

Federal law prohibiting unfair or 

deceptive acts or practices. The attached 

Analysis of Proposed Consent Order to 

Aid Public Comment describes both the 

allegations in the complaint and the 

terms of the consent order—embodied 

in the consent agreement—that would 

settle these allegations. 

DATES: Comments must be received on 

or before January 6, 2025. 

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 ‘‘IntelliVision; File 

No. 232 3023’’ 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, Mail 

Stop H–144 (Annex F), Washington, DC 

20580. 


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