Anatomy of Public Comments: An Empirical Analysis of Comments on FTC’s Proposed Ban of Employee Non-Competes

Antitrust Magazine, Vol. 38, No. 2, Spring 2024

Federal agencies are generally required to issue a notice of proposed rulemaking and provide an opportunity for public comment on the proposal before issuing a final rule. These notices often attract thousands of public comments, which can be a significant burden for the agencies tasked with reviewing them and determining whether changes to the proposed rules are necessary. It is unclear, however, whether the submitted comments actually provide the knowledgeable and diverse points of view that the agencies seek. What types of individuals, businesses, and organizations are submitting comments? What are their viewpoints? What information or evidence are they offering?

To shed light on these questions, Analysis Group Managing Principal Jee-Yeon Lehmann, Manager Yeseul Hyun, and Consultant Shannon Seitz conducted an empirical study on the comments submitted for a January 2023 proposal by the Federal Trade Commission (FTC), which would ban non-compete agreements between employers and employees as an unfair method of competition. The proposed rule attracted nearly 27,000 comments over a three-month period.

In an article published in Antitrust Magazine, the authors detail the results of their investigation, in which they analyzed a random sample of more than 900 comments on the proposed ban to determine the types of individuals and organizations who submitted comments and the ideas they put forward. Among their findings, they discovered that the random sample of comments did not reflect a representative segment of US employers and employees – they were predominantly submitted by employees (rather than employers) and were concentrated in the health care sector. They also found that fewer comments were submitted from states where non-compete bans are already enforced.

Given the potential pitfalls from drawing conclusions from a non-representative sample, the authors conclude that “the proposed rule is likely to have wider and more varied implications for the U.S. economy than are captured by the public comments, and care must be taken in drawing general conclusions from the comments.”

Read the article


Hyun Y, Lehmann J, Seitz S