Podcast Summary: FTC Warns Law Firms—Rethink Your Diversity Collaborations

Emerging Litigation Podcast | Host: Tom Hagy
Date: February 12, 2026

Episode Overview

This episode unpacks recent warnings from the Federal Trade Commission (FTC) directed at major law firms over their participation in diversity certification and collaboration initiatives. Host Tom Hagy explores the implications, legal context, and political motivations behind these warnings, connecting them to similar pressures facing media companies. The episode emphasizes the ongoing use of antitrust frameworks and regulatory scrutiny by the administration—focusing particularly on DEI (Diversity, Equity, and Inclusion) programs—and what this signal means for law firms, the media industry, and the evolving relationship between private power and government oversight.

Key Discussion Points & Insights

1. FTC Warnings to Law Firms and Mansfield Rule Background

• FTC Warning Letters: On January 30, the FTC chairman, Andrew Ferguson, sent cautionary letters to 42 major law firms, suggesting their participation in Diversity Lab’s Mansfield Certification may create antitrust liability under Section 1 of the Sherman Act (collusion/restraint of trade) and possibly Section 5 of the FTC Act (unfair methods of competition).
  • "It's more along the lines of 'watch your step' than 'you are breaking the law.'" (00:38)
• Mansfield Rule Explained:
  • Launched in 2016 by Diversity Lab to diversify candidate pools for law firm leadership—modeled after the NFL’s Rooney Rule.
  • Requires at least 30% underrepresented lawyers to be considered for promotions and leadership.
  • Emphasized repeatedly: “These are not quotas,” but inclusive benchmarks.
  • Named after Arabella Mansfield, first woman admitted to practice law in the U.S. (00:59–03:03)
• Legal Context:
  • Federal courts have ruled that the Mansfield program does not constitute unlawful quotas; it broadens opportunity but does not mandate outcomes.

2. Antitrust Theories and DEI Program Concerns

• Labor Market Antitrust:
  • FTC frames coordination among law firms (e.g., “knowledge sharing calls”) as a potential risk for distorting competition for talent and possibly wage suppression.
  • "The commission warns that any exchange of pay or benefits information among competitors could harm competition for talent." (09:15)
  • Tom’s skeptical tone: "If you had an HR conference—hardly collusion." (05:22)
• Nature of the Letters:
  • No formal charges—merely advisories suggesting firms should review their DEI-related inter-firm interactions.
  • Law firms’ response so far: silence and quiet preemptive scaling back of DEI efforts.

3. Political Dimension and Judicial Rulings

• Ongoing Political Pressure:
  • Trump administration pursuing removal of DEI programs, calling them “reverse discrimination."
• Recent Court Decisions:
  • Perkins Coie v. DOJ (2025): Judge Beryl Howell found no evidence that Mansfield participation equates to discriminatory hiring.

    “The Mansfield rule expressly does not establish any hiring quotas or other illegally discriminatory practices, requiring only that participating law firms consider attorneys from diverse backgrounds for certain positions.” (Judge Howell, 13:30)

  • Government has appealed to the D.C. Circuit.

4. Broader Regulatory Pattern—Media as a Parallel Target

• Targeting Media Companies:
  • Administration has leveraged antitrust scrutiny against media organizations and media mergers, seeking to shape market dynamics in politically advantageous ways.
  • Example: DOJ supporting lawsuits alleging mainstream media colluded to suppress alternative content via the "Trusted News Initiative" (TNI).
  • Mainstream publishers say the effort was simply to combat health and election disinformation—case is ongoing.
• Media Mergers Under the Microscope:
  • Trump expressed intent to be “involved" in reviewing Netflix’s proposed $83B acquisition of Warner Brothers Discovery, while a Trump-aligned group backs a rival bid (Parmount/Skydance).
  • Concerns arise over personal financial interests disclosed during active regulatory review (bond purchases in relevant companies).

5. Motivations, Implications, and Industry Reaction

• Administration’s Rationale:
  • White House sees law firms and media companies as wielding excessive influence for profit and politics—a perceived abuse meriting intervention.
  • Use of regulatory and antitrust power is both ideological and retaliatory, especially toward dissenting law firms and media outlets.

Notable Quotes & Memorable Moments

• On the FTC Warning Letters (Cautious but Not Accusatory):

  "The commission also emphasizes that its letters are not findings of illegality. They're just love notes. But cautioning, they're just cautionary notes encouraging firms to review their DEI related interactions with competing law firms. So watch your step."
  — Tom Hagy (09:48)

• On Judicial Review of Antitrust Claims:

  "The judge concluded that the FTC failed to provide any evidence of any anti discrimination law violations."
  — Tom Hagy (13:44)

• On Media Antitrust and State Retaliation:

  “The administration seeks to reward aligned media companies and disadvantage those as critical, reinforcing the same concerns about retaliatory government power that underlie the federal court's skepticism in the law firm cases.”
  — Tom Hagy (21:25)

• On the Bigger Picture:

  "This ongoing scrutiny reflects a broader ideological stance that these institutions, in the administration's view, have crossed lines in ways that justify government intervention both to restore competition and to curtail perceived outreach in the pursuit of profit and political objectives."
  — Tom Hagy (26:02)

Timestamps for Key Segments

• 00:38–03:03 — Background on FTC warnings & the Mansfield Rule
• 05:22–10:10 — FTC’s antitrust logic, “knowledge sharing,” and skepticism of collusion allegations
• 13:15–14:00 — Perkins Coie v. DOJ and court rejection of discriminatory hiring claims
• 15:00–22:30 — Analogy to media industry antitrust, political use of regulation, and merger scrutiny
• 24:30–End — Host’s editorial on private power, government overreach, and the implications for firms & media

Takeaways

• The FTC’s warnings fit a broader pattern of regulatory and political scrutiny of corporate DEI and coordination efforts.
• Legal distinctions between inclusive benchmarking (as in the Mansfield Rule) and illegal quotas or collusion remain clear per current judicial rulings.
• The administration’s efforts—targeting both law firms and media—reflect deeper ideological battles over influence, diversity, and the use of antitrust as a tool of political leverage.
• The episode closes with a reminder: the outcomes of these conflicts will shape future legal, regulatory, and corporate landscapes around diversity, competition, and speech.

Host contact: editor@litigationconferences.com