A Ruling and Order issued on April 28, 2023 by the US District Court for the District of Connecticut in United States v. Patel, et al. ran the government’s losing streak to four failed trials seeking to criminally prosecute alleged wage-fixing and no-poach agreements.
To review, in 2016 the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) issued Antitrust Guidance for Human Resources Professionals that warned of potential criminal prosecutions for so-called “naked” no-poach agreements, ie , agreements among competing businesses to restrict hiring or compensation of employees, untethered to any legitimate collaborative relationship.Since 2020, the DOJ…
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The FTC announced yesterday that it was extending the deadline to submit public comments on its proposed rule banning non-competitive employment.
With the extension, the FTC will now accept comments on the proposed rule until April 19. Originally, the deadline for submitting comments was March 20.
Information on how to submit comments can be found in the Federal Register notice.The Commission voted approving the public comment period extension was 4-0, with Commissioner Christine S. Wilson issuing a concurring statement.
100 business organizations had previously requested a sixty day extension on the public comment deadline.
Commissioner Wilson, who recently announced…
On February 21, 2023, the National Labor Relations Board (“NLRB” or “Board”) continued its aggressive application of the National Labor Relations Act (“Act” or “NLRA”) to workplaces without union representation and lessened the value of severance agreements for all employers by finding it unlawful for an employer to merely proffer a severance agreement that includes broad non-disparagement and confidentiality provisions to an employee. in Mclaren Macomb, the Board held that a severance agreement that contained a confidentiality clause and a non-disparagement clause was unlawful because, in the Board’s view, these provisions impermissibly infringe on employees’ rights under the Act. Specifically,…
our colleagues Erik W. Weibust, Peter A. Steinmeyer, and Stuart M. Gershon co-authored an article in the legal backgrounder, published by the Washington Legal Foundation, titled “After 200+ Years Under State Law, FTC Proposes to Sweep Away All Noncompetites in Unauthorized Federal Power Grab.”
Following is an excerpt:For over 200 years, the regulation of non-competition agreements (“non-competitions”) has been entirely the province of state law. Forty-seven states currently permit noncompetes, and the most recent state to ban them was Oklahoma in 1890. Yet the Biden Administration and its activist Federal Trade Commission (“FTC”) Chair want to do exactly that…
We wrote previously about how nobody seemed to be talking seriously about the noncompete bill that was passed by both the New York General Assembly and Senate last month. If signed by Governor Hochul, the bill would ban non-competes without a carveout even in the sale of a business context, which both California and the Federal Trade Commission’s proposed rule includes.Luckily, in the weeks since we wrote that post it appears that people are finally taking notice. Several legal and industry organizations in New York have either submitted or are in the process of drafting letters or otherwise reaching…
The National Labor Relations Board (NLRB) has found its first target under recent guidance issued in a memo from its General Counsel claiming that noncompete agreements may violate the National Labor Relations Act (NLRA). According to Bloomberg Law, “[t]the NLRB’s first enforcement action against an employer’s noncompete agreement targeted a Michigan cannabis processor and ended with a recent private settlement resolving the alleged labor law violations.” (The enforcement action predates the guidance memo). Bloomberg obtained redacted documents from the case via a Freedom of Information Act request.As we previously reported, on May 31, 2023, the NLRB’s top lawyer, Jennifer…
Now on Spilling Secrets, our podcast series on the future of non-compete and trade secret law:
Trade secrets and non-compete litigation can result in massive damage awards, but those cases can also be unpredictable. Many viable trade secret claims went unexplored due to financial limitations or a lack of willingness to invest in litigation.
Attorney and Spilling Secrets host Erik W. Weibust and three special guests—Epstein Becker Green’s Managing Partner, James P. Flynn; Stephanie Southwick of Omni Bridgeway; and Mary Guzman of Crown Jewel Insurance—discuss the monetization of trade secrets litigation.* * *
Tune in to Spilling Secrets, a…
