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Antitrust, Florida Non-Compete Agreements, Non-Compete Agreements

2019: Non-Compete Abuse, Civil Rights, Morality, and Reform

Since starting my own law firm more than seven years ago, I have done one type of work more than any other: Defend poor people against bogus, abusive, illegal non-compete agreements. In all fairness, I have also done lots of work at the other end of the spectrum. I have defended C-Level executives (including some from publicly traded companies), rainmakers, prominent physicians, and more. I have litigated non-compete cases where there was $20+ million on the line. But I always come back to the poor people non-compete cases. Security guards. Factory workers. Secretaries. Interns. Janitors. Because these cases are so absurd and so egregious.

Most People Get It

I take a lot of Ubers. I’m always talking with Uber drivers. Today, I took a ride with a great guy named Frank. We talked for a bit, then he asked me what I do for a living. I told him law. He asked me what kind of law. So I told him about the poor people non-compete cases. He was shocked and appalled. “How can that be legal! How can they get away with that!”

Frank isn’t a lawyer. Frank isn’t highly educated. But he understands the obvious truth: Especially for poor and working class people, non-compete agreements are absurd and should be illegal. I get it. Frank gets it. I’ve had this same conversation with literally hundreds of other Uber drivers. They get it, too.

Greed, Denial & Delusion

But the emperor has no clothes. There are plenty of lawyers in Florida (and beyond) who make their living by filing lawsuits to enforce non-compete agreements. And some of these lawyers have no problem suing security guards or factory workers. That does not sit well with me. As of today, none of these lawyers has ever given me even a remotely plausible justification for these poor people non-compete agreements. I’ve gotten lots of histrionics about how I am a terrible person and a disgrace to the legal profession. How I am evil and immoral for questioning the sanctity of contract. How I am a bully for aggressively defending poor people against abusive non-compete agreements, often for free, and always against adversaries who have far more money and power. But nobody has once given me a credible explanation for why a security guard or factory worker should be subject to a non-compete agreement. That is because no credible explanation exists. That is because these types of non-compete agreements are wholly illegal, motivated by greed, and serve no legitimate purpose whatsoever.

You would never guess that such a statement would be so controversial. Such as:

Subjecting a janitor to a non-compete agreement is immoral and wicked. Those who facilitate that sort of conduct are engaging in behavior that is immoral and wicked. There is no legitimate purpose for a janitor non-compete agreement. It is motivated solely by greed and is entirely illegal. Companies that engage in this sort of conduct should face severe consequences and be forced to change their behaviors. They should be punished severely. Lawyers that represent those companies in these cases are acting based on improper motives (e.g. greed) and ignoring their moral and ethical obligations.

To me, that statement seems entirely fair and entirely accurate. But in a state like Florida, that statement is considered highly offensive and controversial.  Questioning the prevailing non-compete orthodoxy, even for employees who make $10 or $11 an hour, is highly controversial. It offends many people who are powerful and connected. It offends many people who make their money from enforcing non-compete agreements (even against poor people). It amounts to a declaration of war against the system and against entrenched corporate and law firm interests. Naturally, I have lots of enemies.

Moral Consequences of Non-Compete Abuse

The situation is still dire. And many companies are still abusing poor people with illegal non-compete agreements. But have hope. To paraphrase: The arc of history is long, but it bends toward justice. Props to Martin Luther King and Minister Theodore Parker. I know: I’m quoting religious figures in the context of a discussion about non-compete law. That offends some people. But I am sick of fake Christians, fake morality, and fake righteous people (of all creeds) who conveniently excuse their own wickedness. Let me be clear: Morality has a place in law. Whether that morality is grounded in a particular religion or not, morality matters. The work that we do, the laws that we create, the way we bring the weight of the legal system to bear upon people (especially poor people) has incredibly heavy moral consequences. Simply put: Making poor people sign non-compete agreements is inherently immoral.

I say that because it has to be said. It is likely that one of my adversaries will file this blog post with the court in one of my non-compete cases and move to disqualify me from representing a poor person. They will argue that my writing and advocacy is unfairly prejudicial to them. Is causing grave harm to the judicial process and the justice system. Consider how strange that is: The mere act of writing about poor people having non-compete agreements, appealing to morality, and arguing that such agreements are fundamentally immoral is….. unfairly prejudicial? The government and government lawyers moralize all the time in criminal cases. Lawyers and litigants moralize all the time in cases about constitutional rights, freedom, liberty, privacy, healthcare, marriage. There is plenty of writing and scholarship on morality, ethics, and even religion and law. And that is all considered fair game. Until I start talking about poor people non-compete agreements, morality, and slavery. Then it becomes a problem. Then it becomes prejudicial and offensive. Forgive me. A number of my ancestors were slaves. Forgive me that something in my very blood rebels against seeing my brethren (of any color) in bondage.

Poor People Non-Competes, Civil Rights, & Soul Force

As an advocate, a human being, an American citizen, and a man of faith, I contend that this moral outrage and disgust is not only appropriate but also necessary. As the civil rights leader James Foreman Sr. called it, this is “soul force.”

The fight against poor people non-compete agreements is part of the modern civil rights struggle. And I submit that it is one of the hardest civil rights battles to wage. Racial equality. Gay rights. Gender equality. All of these battles are incredibly important for society and for the soul of our nation. But these three (in bold) are examples of civil rights battles that are far more popular. They have far more buy-in. They have corporate buy-in. The fight to end non-compete abuse is far less popular and does not have corporate buy-in, because companies are the ones perpetrating the abuse. So we are back to James Forman Sr. and one of my favorite speeches of all time. I watch the clip of that speech all the time and I often reflect on his words (Mr. Foreman is dead but he still lives and carries so much power). We need that same equation. We need (1) Soul force / civil rights. That is (1).

We need (2) the law. I have been fighting in the courts. I have been fighting on the law. On the doctrine. To explain how non-compete law is supposed to work (i.e. antitrust framework). To help courts, judges, and other lawyers have a revelation, that revelation being:

Companies are abusing non-compete agreements. Non-compete agreements are not simple contracts. We cannot just say that someone violated a contract and must be punished. That’s wrong. These contracts are restraints of trade and companies are badly abusing them. We need to limit this. We need to rigorously scrutinize this. We cannot allow companies to abuse non-compete agreements, pay lip service to some supposedly legitimate business interest, and easily obtain an injunction that puts someone out of work. People should be free to earn a living unless it truly creates some dire harm or obvious unfairness. And just saying, “You signed a contract” does not prove any such harm or unfairness. The vast majority of employee non-compete agreements are completely unnecessary, improper, intended to restrict ordinary competition, and must be deemed illegal.

So I have been fighting the technical fight on law, doctrine, policy. And I have obtained numerous court decisions that go in this direction. The best decision was probably Lucky Cousins (MDFL). The Court denied the motion for preliminary injunction on the papers, without a hearing, and held that the non-compete agreement appeared to be clearly unenforceable for lack of any legitimate business interest. The Court got it 100%. I am so grateful for that decision. Because it confirmed that I am not just a crazy zealot — I am also correct doctrinally. I have numerous other decisions to support that contention. This is the technical/doctrine/law/policy fight (2).

And finally, we need (3) leaders. This mirrors Forman’s speech. They already had soul force (1). They were working in the courts and on the law (2). But they needed the White House to tell George Wallace to stop that mess or they were coming down there.

We need more soul force (1). We need more moral outrage. We need more framing of this issue and this cause as part of the modern day civil rights movement. We need more work in the courts (2), but plenty of us (myself included) are already fighting that battle. And more than anything, we need leaders, particularly in government, to take a stand for what is right. We need congressmen (and women), senators, governors, attorneys general, and the President to stand up and tell people to stop this mess. Draw some lines in the sand. And the easiest, brightest line that we can draw is to say that poor people, working class people, and middle class people who don’t make very much money should never be subject to a non-compete agreement.

Jonathan Pollard is a lawyer, writer, and consultant based in Fort Lauderdale, Florida. His office can be reached at 954-332-2380. 

 

 

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