Author Archives: Russell Beck

FTC Commissioner Wilson Testifies to Congress about Noncompetes

Posted on
“Non-compete agreements that are unreasonable as to temporal length, subject matter, and/or geographic scope will be found to violate both federal and state antitrust laws.”

That’s new — especially because it’s from Federal Trade Commission Commissioner Christine Wilson.

But, at the end, Commissioner Wilson observed, “The elected officials in each state are best situated to weigh the costs and benefits of non-competes and make decisions tailored to the unique circumstances in their jurisdictions. . . . A federal solution at this time is premature.”

Another Step Closer to FTC Regulation of Employee Noncompetes?

Posted on
Contracts containing restrictive covenants (noncompetes, nonsolicitation agreements, and the like) have been the province of state regulation for over 200 years. However, starting in 2015, the federal government has been stepping into the breach through proposed legislation (most recently two bills to ban all employee noncompetes and one to amend the FLSA to ban noncompetes for nonexempt workers), FTC review (starting with a workshop in January 2020), and an Executive Order (on July 9, 2021) “encouraging” the FTC to “curtail the unfair use of non-compete clauses . . . .” While that’s not news, what is news is that earlier this week (September 14, 2021), the FTC issued a public statement that — if it is as broad as it appears — seems to presume that the FTC has authority to regulate these types of contracts.

Are Noncompetes Ethical?

Posted on
A recent paper, “The Ethics of Noncompete Clauses,” by University of Georgia Professor Harrison Frye, expands the policy discussion around noncompetes, and argues for a more thoughtful analysis. As Professor Frye details, seeing noncompetes “as solely advancing the interests of employers is myopic.”

Eight States with 24 Noncompete Bills: New Jersey

Posted on
If you’ve been following along with this series of posts, you know that there have been 66 noncompete bills pending in 25 states this year — plus three pending federal noncompete bills, D.C.’s new law to ban most noncompetes, and a bill to rein in D.C’s new law before it becomes effective (which is anticipated to be in April 2022). Today’s post discusses New Jersey’s proposed noncompete legislation.

We Have Another Piece of the Consideration Puzzle under the Mass Noncompete Act

Posted on
On Thursday, July 15, 2021, United States District Court Judge Hillman issued what I believe is the first (readily available, anyway) non-dicta, substantive decision on the Massachusetts Noncompetition Agreement Act (the MNAA). Read more about Judge Hillman dismissal of a claim based on a nonconforming noncompete in KPM Analytics North America Corporation v. Blue Sun Scientific, LLC (C.A. No. 4:21-cv-10572-TSH).

D.C.’s Proposed Noncompete Ban Not To Take Effect Until Next Year — And May Be Amended

Posted on
The D.C. Council held two proceedings related to its recent noncompete ban last week. During both, at-Large Councilmember Elisa Silverman recommended pushing back the implementation date of the new law to April 1, 2022. During the hearing, the Council received wide-ranging testimony about a potential amendment: some objective, verifiable input and some partisan rhetoric; some spot on and some inaccurate. Now we wait.

Déjà vu all over again (again): The Freedom to Compete Act Redux

Posted on
As of Friday (July 16, 2021), we again have competing approaches to federal legislation proposing limits on noncompetes. In addition to the previously reintroduced Workforce Mobility Act, proposing an outright ban, Senators Marco Rubio (R-Fla.) and Maggie Hassan (D-NH) have now reintroduced the Freedom to Compete Act to ban noncompetes for most workers who are not exempt under the Fair Labor Standards Act of 1938.

Quick Update: President Biden Issued an Executive Order on Noncompetes (and other things)

Posted on
This afternoon, President Biden signed an “Executive Order on Promoting Competition in the American Economy,” which included pushing for the regulation of noncompetes by the FTC. Based on his comments during today’s press conference (discussed in the post), we expect that any regulation will be balanced, focusing on regulating the abuses, rather than a throw-the-baby-out-with-the-bathwater wholesale ban.

New Map of Recent Changes to State Noncompete Laws

Posted on
Over the past several years, there have been changes to the noncompete laws in 24 states — plus D.C. In some states (such as Illinois, Oregon, and Nevada), there were even multiple changes to the law over the last few years.

To keep track of it all, we’ve prepared a map as a visual supplement to our Changing Trade Secrets | Noncompete Laws page.
1 … 4 5 6 7 8 … 20