As one agency abandons its investigation into law firm DEI programs, another picks up the baton. In an unprecedented move, the Federal Trade Commission (FTC) sent letters to multiple law firms warning that DEI initiatives could violate federal antitrust law. A recent Wiley memo discusses the content of the letters:
“Federal Trade Commission (FTC) Chairman Andrew N. Ferguson issued warning letters to 42 U.S. law firms on January 30, 2026, regarding potentially unfair and anticompetitive employment practices tied to diversity, equity, and inclusion (DEI) hiring initiatives. According to the FTC’s press release, the agency is concerned that coordinated use of DEI ‘metrics,’ candidate pools, or promotion criteria may distort competition in labor markets – particularly when employers make collective decisions affecting hiring, compensation, or advancement.”
The FTC’s arguments against DEI largely mirror those we’ve seen out of the Texas Attorney General when attacking ESG. DEI litigation has been seeing a lot of developments lately, and some of our readers may be left confused. Is anti-DEI winning or losing? Nearly every day, there’s news about a court decision or a new investigation. It can be hard to keep score. The big picture is that anti-DEI has not won yet. However, that has not deterred them from bringing new investigations and new cases. This is because they are testing multiple legal vectors, looking for one that yields results. Essentially, they are throwing legal spaghetti at the wall and seeing what sticks. So far, nothing has stuck, but there’s always more spaghetti to throw.
Our members can learn more about ESG litigation here.
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