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To anyone with even a rudimentary understanding of antitrust law, it is obvious that employee non-compete agreements are at least potentially problematic. By definition, non-compete agreements are agreements not to compete. They are contracts in restraint of trade. But say the word antitrust in a non-compete case and most corporate lawyers and (unfortunately) even some judges … Continue reading
Around 2010, non-compete abuse in America reached peak absurdity. As I have explained many times: This was a a product of the following factors: (1) The internet and the information age. (2) Widespread availability of copy and paste non-compete agreements. (3) Corporate lawyers pushing aggressive use of non-compete agreements as a revenue generation tool. Make … Continue reading
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 … Continue reading
In a turn of events that should surprise no one, the bro-ed out start-up WeWork has caught heat for abusing employee non-compete agreements. That’s right. While holding itself as new wave, disruptive, and collaborative, WeWork has simultaneously required every single one of its 7,500 employees to sign an agreement containing a non-compete provision. This includes … Continue reading
It’s August of 2018 and non-compete agreements are still rampant in American markets. Not surprisingly, non-compete litigation remains big business for management-side lawyers, particularly at large corporate firms. But there are cracks in the armor. More and more states are contemplating severe restrictions on the use of non-compete agreements, if not outright bans. And several … Continue reading
On April 3, 2018, the Department of Justice’s Antitrust Division announced the first no-poaching antitrust settlement of the Trump Administration. Previously, senior DOJ officials had made public comments indicating that the DOJ intends to aggressively police no-poaching agreements, including via criminal prosecutions. According to the DOJ, the antitrust conspiracy involved two of the world’s largest … Continue reading
In a surprising continuation of Obama-era policy, the Trump DOJ has announced that it will pursue criminal action against firms using no-poaching agreements. On January 18th, 2018, while speaking at an Antitrust Research Foundation conference, Assistant Attorney General Makan Delrahim noted that the DOJ has not backed away from previous no-poaching guidance. Instead, AAG Delrahim … Continue reading
Let’s beat the same drum but only this time, take it a step further: Widespread Ignorance About Non-Competes & Antitrust Certain practitioners and judges have absolutely no understanding of the antitrust principles upon which non-compete law is based. True story: I was in a hearing in front a federal judge who I will not … Continue reading
I’ve been saying it for years: Non-compete agreements are restraints of trade and are subject to antitrust scrutiny. The United States Court of Appeals for the Ninth Circuit agrees. Before the court can consider whether or not there has been a breach of an agreement not to compete, it first must evaluate the propriety of … Continue reading
Last week, the Wall Street Journal ran a story about non-compete agreements making it difficult for younger journalists to get new jobs and move up in the news world. The article focused substantially on a young journalist named Stephanie Russell-Kraft who moved from Law360 to Thomson Reuters. Shortly after beginning work at Thomson Reuters, her … Continue reading
the non-compete blog 