How does antitrust enforcement under Donald Trump compare to that under Joe Biden?

Overall, not that much different.

Take the issue of employee non-competes.

Cadwalader’s Bilal Sayyed, who worked at the Federal Trade Commission under the first Trump administration, recently authored an article titled –  Federal Trade Commission Enforcement Action Suggests it Will Treat Employee Non-Competes as “Inherently Suspect.” 

Despite the fact that the Biden proposed ban on non-competes is now dead, Trump’s FTC Chairman Andrew Ferguson “indicated that the Commission is not backing off from an interest in non-competes,” Sayyed wrote. “The Commission, he says, will ‘protect American workers by … patrolling … markets for specific anticompetitive conduct that hurts American … workers and taking bad actors to court.’”

What are employee non-competes and what is the antitrust concern?

“Both the FTC and the Department of Justice are focused on agreements between the employer and employee that restrict the ability of an employee to work for a competitor within a specific geographic area for some period of time after leaving the company.” Sayyed told Corporate Crime Reporter in an interview last week. “Non-compete agreements have been used for a long time where the employer invests in the employee, or the employee has access to trade secrets or customer relationships that are in some sense the property of the employers.”

“They have been used to prevent the employee from taking intellectual property, trade secrets, and customer relationships to another firm. Over the last twenty years, they have been extended down to employees doing the most basic tasks, where they probably don’t have access to intellectual property or trade secrets or special customer relationships.” 

“The policy community, including actual policymakers in federal and state legislatures, became concerned that the expansive use of non-compete agreements has restricted the mobility of employees for no good reason, including very low wage employees and that this has had an effect on both the ability of employees to obtain better jobs or even to start their own businesses.” 

“It’s a fair question as to what is the competitive impact of these non-compete agreements. For relatively low wage employees who have not invested in specific skills, it seems unlikely that restrictions on individual employee mobility will affect competition. There are studies on this topic generally and the results are in some ways mixed. It’s a little hard to identify specific anti-competitive effects from the very broad use of non-compete agreements. But that doesn’t mean they don’t affect the individual who is subject to the non-compete, particularly the individual who has no access to company secrets or company relationships.”

“These agreements do strike many people as unfair.”

That was the view held by former FTC chair Lina Khan when she banned them before leaving office. At the time, she said non-competes ‘keep wages low, suppress new ideas and rob the American economy of dynamism including more than 8,500 new start ups that would be created every year once non-competes are banned.’

So they were banned. What was the impact of the banning of non-competes?

“With respect to the FTC’s rule that banned the enforcement of non-competes, the result was probably next to nothing because the rule never went into effect.” 

When was it scheduled to go into effect?

“September 2024. But at least one court had enjoined enforcement of the rule. So it never went into effect. Of course, we have states that have prohibited non-competes. I would say the results of those prohibitions are in some sense mixed. The claims made for the potential benefits of the rule were likely overstated.” 

“What the chair said about the rule came from some of the empirical work on the effects of non compete agreements. But what she had suggested would be the benefits were probably overbroad. And there could have been some negative effects of a prohibition. There was some justification for these non-competes especially for high level executives. The courts had accepted that there were legitimate uses of non-competes and were often looking at the scope of the non-competes in terms of length, geographic area, types of prohibitions.” 

“There was some thought that the ban was overly broad and didn’t take into account some of the research that cut the other way in terms of the benefits of non-competes.”

The World Series is coming up. Wouldn’t most Americans consider it unconscionable for a baseball team to put non-competes into the contract of baseball players – basically tell a baseball player that when they left one team they couldn’t go play for another team?

“In fact, baseball teams and other athletic teams can keep their players under contract for a certain period of time and can restrict their movement.”

But not after they leave. They can’t say – after you leave us you can’t play for another team.

“There are restrictions on players’ ability to move in the first years of their contract without compensation. But putting that aside, people do feel that a broad use of non-compete agreements is unfair. The use of non-compete agreements in sandwich shops and other businesses with employees who didn’t have specialized knowledge or specialized relationships – people felt that these were in layman’s terms unfair. The idea is that most people should be allowed to pick up and go to work for a competitor as a way to protect themselves from unfair working conditions or bad working conditions or being treated unfairly with respect to their wages.” 

“So yes, intuitively, the very expansive use of non-compete agreements probably would be thought to be unfair or unjust by most people.”

You say that the new FTC under Andrew Ferguson might not be that much different on non-competes. How so?

“I don’t think it’s that much different. If you look at some of the enforcement matters the Biden FTC brought, either prior to proposing the rule or slightly after the rule, they look similar to the first non-compete case that the Trump FTC brought just a month or so ago.”

“If you look at the non-compete enforcement actions that the Biden FTC brought, it is difficult to identify an actual anti-competitive effect from the restriction. Did the non-compete affect competition? If you read the complaints and related documents, it’s hard to see that the FTC was alleging a competitive effect from the non-compete agreements. That is also true with respect to the case brought by the Trump FTC a month ago. They tried to allege a competitive effect. And the assertion was not really a competitive effects analysis. Gateway was a pet cremation business. It’s hard to believe that their competitors could not find employees to do some of the basic work of the pet cremation business – the picking up of the deceased pets, the disposal of the deceased pets – because of the restriction of some number of former employees of Gateway.” 

“The willingness to proceed against these non-competes without showing an anti-competitive effect is similar to the Biden administration.” 

“The first Trump FTC was also interested in this issue. We did workshops. We sought comments. We reviewed the literature. And we were writing a report and thinking about whether the FTC had the authority to issue a rule. So we were thinking about it too. My concern was that we ought not to enforce what I thought was a competition statute without being able to show an anti-competitive effect. What I would say is – if we think this is a problem, an antitrust or competition problem, what kind of case can we bring? I felt that it would be only under very narrow circumstances that we could find a case where we could show competitive effects.” 

“None of that means this shouldn’t be of interest to the Congress or the state legislatures. I thought that the overly broad use of non-competes should be a matter for the Labor Department, not the FTC.”

You have spoken about the Trump administration’s commitment to Biden era merger guidelines. Who had the stronger antitrust program – Biden or Trump?

“I will always defend the first Trump administration, particularly the FTC in terms of their aggressiveness when it comes to mergers and conduct cases. Notwithstanding the rhetoric that came out of the Biden administration, you can make a strong case that the first Trump administration was stronger on antitrust than the Biden administration.” 

“The Biden administration did things a bit differently. They moved away from settlements and suggested they would litigate rather than settle cases. That was more true of the FTC than the Department of Justice. That might have shown more aggressiveness. But they certainly had fewer enforcement actions over their tenure than the first Trump administration.”

“The second Trump administration is just starting up. It is hard to get a sense as they move back to a willingness to settle cases and also be transparent about their settlements rather than try to hide them. But what we’ll find is relatively stable enforcement records across administrations with a different mix of settlements versus litigation.”

“Are two settlements worth more than one abandoned transaction because of litigation? Who knows? In early the Biden administration, both the FTC and the Department of Justice were a little more aggressive than the recent case law suggested would win cases. You can see that in the FTC’s loss in the Meta-Within merger case and in the Microsoft-Activision case. You can see that in some of the Department of Justice merger cases that they lost early on.” 

“But if you look at the cases they brought subsequent to the 2023 merger guidelines, those cases were fairly standard. They did not rely on the more aggressive individual guidelines. The fact that the second Trump administration has said they would not modify or revoke the 2023 merger guidelines doesn’t really tell you a lot. It’s – how are they using the guidelines, how are they litigating cases, are they relying on the more aggressive theories in the 2023 guidelines? Or are they focused on the stronger theories of harm identified in the 2023 guidelines, which draw from the 2010 horizontal merger guidelines, the 1992 horizontal merger guidelines and the 2020 vertical merger guidelines?”

“I think they will end up more or less at about the same place and people will fight over whether two settlements are worth more or less than one blocked deal.” 

“It’s not the policy of the Trump administration to deter merger activity. It was probably the policy of the Biden FTC to try to deter merger activity. But there were a lot of mergers during the Biden administration. And notwithstanding a lot of complaints about the enforcement posture, if you look at the record, it was not a record that should have scared people off mergers. The Trump administration may suggest that they are going to get out of the way, but they are also going to challenge the deals that are a problem. The rhetoric is different, but I think they are going to end up in the same place when you look at the record overall.”

Former Congressman Phil Gramm wrote an article in the Wall Street Journal in August 2025 – Trump’s Approach to Antitrust is as Bad as Biden’s. And Matt Stoller on his blog in July – The Incredible Shrinking Trump Antitrust Enforcers. 

From the right – as bad as Biden. From the left – shrinking to nothingness.

“You have to look at the cases they are bringing and you have to look at the cases they are not bringing. And that’s hard to do, particularly the cases they are not bringing. But I think some of the rhetoric of the agencies toward large firms, especially the large tech companies, does sound similar between the Biden and Trump Two administrations. And that is a little bit about what Phil Gramm was writing about.” 

“But all of the big tech monopolization cases were initiated in the first Trump administration. The two Google cases were under investigation in the first Trump administration. The Meta complaint by the FTC in the first Trump administration. The FTC was investigating Amazon during the first Trump administration. And I believe that the Department of Justice was investigating Apple during the first Trump administration.” 

“Even some of the other cases – take the Live Nation case. The Live Nation Ticketmaster complaint was an extension of the work the Trump one administration was doing in that case. The Syngenta case that the FTC brought during the Biden administration – that investigation started during the Trump administration. All of this is public. I’m not sure if the John Deere right to repair case was initiated during the first Trump administration.” 

“And this is normal. Monopolization cases take a long time to develop. Some of the cases that we brought in the first Trump administration, those investigations started in the Obama administration. It’s just hard to gin up antitrust cases particularly within the early days of an administration. They take a few years to develop and that often means that they cross over to different administrations. And that’s a positive.”

“There was a difference in the Biden administration between the FTC and the Department of Justice. Jonathan Kanter had a lot more experience and did not pursue cases that were weak on the facts. And over at the FTC, Chair Lina Khan wasted eighteen months looking for cases that would advance a more expansive view of antitrust when they just did not have the facts to do that. We would have been better served if large leaps were abandoned in favor of incremental progress in advancing antitrust law.”

“Chair Khan rejected that approach and it wasted a couple of years. Jonathan Kanter did not do that. He had a lot of experience. He had a lot of client experience. He did not reject everything that came before him. Chair Khan had brought a lot of interest and energy to antitrust. She was a rock star in the antitrust world. It was a squandered opportunity until she got some better professional staff running, particularly the Bureau of Competition, than she had earlier.” 

[For the complete q/a format Interview with Bilal Sayyed, see 39 Corporate Crime Reporter 41(12), October 29, 2025, print edition only.]