As we await the FTC and DOJ’s December 6 and 7 Virtual Public Workshop Exploring Competition in Labor Markets, it’s important to know that on November 12, the FTC posted a draft Strategic Plan fo...
Were you wondering where Wyoming stands on a potential noncompete ban? You won’t find it on the legislature’s website or Legiscan. But, as it turns out, Wyoming is considering a ban, as well as a more limited restriction.
No one ever points to North Dakota’s or Oklahoma’s ban on noncompete as producing a thriving tech sector, because they haven’t. Yet, somehow think that the same ban in California is why we have Silicon Valley. This assumption is wrong for multiple reasons. Worse, it leads to poor policy.
The FTC and DOJ will be hosting a two-day workshop on December 6 and 7 covering, among other things, the use of noncompetes and NDAs.
Episode 12 of Fairly Competing is out! In this episode, Ben Fink, John Marsh, and I explore Wisk Aero LLC v. Archer Aviation Inc., an extremely well-reasoned decision offering an object lesson about preliminary injunctions in trade secret cases, highlighting that it’s no longer safe to assume you will get a preliminary injunction simply because a former employee downloaded 5,000 documents — even if he invokes the 5th Amendment.
“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.”
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.”
The ULC officially released the Uniform Restrictive Employment Agreement Act. A tremendous amount of work went into developing it. Take a read and see what you think.
We’re nearing three years to the day that the Massachusetts Noncompetition Agreement Act has been in effect. While we have only two decisions so far that provide any insight into some of the more thorny questions about the statute, we seem to be on the cusp of getting at least one new data point.
As regular readers of this blog know, I focus on providing content and rarely suggest educational programs to attend. However, given that CLE programs are still remote and can be hard to identify, I t...
About twice a year, I update my chart of reported noncompete and trade secrets decisions. The results continue the trend: While noncompete litigation appears to have largely leveled off over the last 15-plus years, trade secret litigation continues to reflect an overall upward trajectory.
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.”
Episode 11 of Fairly Competing is out! In this episode, Ben Fink, John Marsh, and I explore the ins and outs of mediating trade secret disputes through a discussion with special guest James Pooley, one of the true deans of the trade secret bar.
Misconceptions about noncompetes abound. And, as noncompete agreements are increasingly in the cross-hairs of the media and legislators, it has become increasingly clear that some of the most vocal de...
Ask two lawyers for their opinion and you’ll get three opinions. But I asked almost 60 lawyers (and paralegals) and got only one opinion — consistent with the last time, when I asked 21 lawyer...
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.
The updates keep coming, but the information does not — well, at least not quickly. President Biden’s Executive Order on Promoting Competition in the American Economy is now available, but references noncompetes in only two quick sentences throughout the 46 pages. Those two sentences provide only a bit more guidance.
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.
President Biden had said that he “will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.” However, he has now announced that he will issue an executive order pushing for the limitation or elimination of noncompetes.
Episode 9 of Fairly Competing is out! In this episode, Ben Fink, John Marsh, and I discuss litigating trade secret cases generally and post-COVID, this time with a focus on the reasons for the lack of civility in trade secret and restrictive covenant cases — and what to do about it.
The day an employee shows up for their first day of work is often the day they learn that a noncompete is a requirement of the job. But, according to a 2015 study by Professors Evan Starr, J.J. Prescott, and Norm Bishara, providing advance notice that a noncompete will be required actually leads to 11% more training and 6.6% more job satisfaction.
Ten states ban noncompetes for low-wage workers, yet, each state has different criteria for who qualifies as a low-wage worker. This post discusses the standards applicable in each state.
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.
To keep track of it all, we’ve prepared a map as a visual supplement to our Changing Trade Secrets | Noncompete Laws page.
Our 50-state (plus DC) chart of noncompete laws has been updated for Illinois’ and Nevada’s recent amendments to their noncompete laws. It is available here.
Nevada too has modified its noncompete law. Effective October 1, 2021, among other things, noncompetes cannot be used for hourly workers and employers will be at risk of paying attorney’s fees for violating certain aspects of the law.