There has been a lot of legislative, regulatory, and judicial activity around noncompetes over the past two months or so. Here is a summary.
With one month left and no agreed-upon fix to D.C.’s problematic noncompete law, the D.C. Council has voted to postpone the law’s effective date until October 1, 2022.
Ten states now have wage thresholds or other criteria that must be satisfied before a noncompete can be used. Are your noncompetes ready?
Legislative activity is picking up again, and therefore so are we. This year, there have been a total of 67 noncompete bills in 22 states,1 plus four pending federal noncompete bills and a bill t...
You hired someone from a competitor. You’re excited. They’re excited. But you may have bought yourself a lawsuit. Can you avoid it? Maybe.
Starting on January 1, the compensation thresholds below which noncompetes cannot be used for employees in each of Illinois, Oregon, and Washington will increase. Specifically, in Illinois noncomp...
As noted in our post, Ask 70 Trade Secret Lawyers and Paralegals about Noncompetes and Get One Opinion, the FTC and DOJ encouraged the submission of public comments following the “Making Competiti...
Happy holidays! Episode 13 of Fairly Competing is out! In this episode, John, Ben, and Russell take a look back on some of the more significant developments in trade secret and restrictive coven...
Once again, we have resounding unanimity on the issues and recommendations to the FTC and DOJ, as they consider whether to regulate (and if so, how) noncompetes, nondisclosure agreements, and other restrictive covenants. 70 lawyers who practice extensively in the area of trade secret and restrictive covenant law agree: federal regulation is likely inappropriate, definitely premature, and, in any event, should be limited.
The Federal Trade Commission (FTC) and Department of Justice (DOJ) just completed their second workshop on competition.[1] Noncompetes are again squarely in the crosshairs. Here is what you need to know and what you need to do.
The FTC's and DOJ’s December 6 and 7 Virtual Public Workshop Exploring Competition in Labor Markets is almost here, and the agenda has been released. While it’s quite possible that noncompete...
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...
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.
“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.”
As we look at recent developments in noncompete regulatory efforts at the state and federal levels, it’s good to have a quick reminder of how we got here. We’ll take a quick tour of noncompete regulation from the Middle Ages to now.
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.
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.
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...
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.
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...
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.
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.