The Oklahoma Bar Journal August 2025

factor to consider is forum selec tion. The cases discussed in this article come from the district and appellate courts of the 5th Circuit. This is arguably a strategic decision to appear before judges averse to agency “overreach” or to appear before judges appointed by a presi dent whose agency heads did not oversee the promulgation of the rule being challenged. Whatever the rea son, we will likely see this continue, and it will be another factor for employers to consider when think ing about challenging agency action pursuant to Loper Bright . Lower courts were ready to act when the Loper Bright decision came down, as it took nearly no time for the impact of Loper Bright to be felt in the employment law world. Mere months after the decision in Loper Bright, a district court in the Northern District of Texas granted summary judg ment to a plaintiff challenging the Federal Trade Commission’s (FTC) authority to issue a noncom pete rule and ultimately issued a nationwide injunction on the rule’s enforcement. 7 The Department of Labor (DOL) also faced post- Loper Bright challenges to its authority. In August 2024, the 5th Circuit

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL