Episode 15 of Fairly Competing is out! In this episode, John, Ben, and Russell discuss what to do when you receive a cease and desist letter, including how to prepare for it and how to respond to i...
Our updated graph of noncompete and trade secrets decisions is now available. Noncompete decisions remain level, while trade secret decisions continue to trend up.
Episode 14 of Fairly Competing is out! Join John, Ben, and Russell for a discussion with special guest Vicki Cundiff about irreparable harm in trade secret disputes.
Over 50 percent of employees admit stealing company information when they leave for a new job. It’s this “insider threat” that keeps us up at night. To help combat it, we have updated and reissued our training, Protecting Trade Secrets While Working From Home, with improved audio and additional substance.
As you will recall, 37 states — i.e., more than 3/4 of all states — have been taking a hard look at their noncompete laws in the past several years, with 24 states, plus D.C., making changes....
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...
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...
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.
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.”
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.
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.
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.”
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.