9 ms·

I haven't yet seen an argument for non-competes that applied to non C-suites and wasn't already heavily covered by IP law. Is the problem at hand anything more

by hansvm 2y ago

I haven't yet seen an argument for non-competes that applied to non C-suites and wasn't already heavily covered by IP law. Is the problem at hand anything more than a cash grab from abusive employers? Back to the chevron thing though, how many of you have ever gotten a parking ticket? Imagine two years after the fact some bureaucrat sent a letter informing you that because of your previous bad decisions you're unable to drive. Driving is a privilege, and the state will no longer grant that privilege to you. Is that decision fair? You already went through the court system (or otherwise paid it off (implicitly, often explicitly, pleading guilty)), a judge took the time to judge your misdeeds, and you had some penalty applied, perhaps the max allowed by the law. Now though, some part of the executive branch wants to ignore any judicial action and assert their opinions. Even before this ludicrous supreme court case, that was a thing that happened. A whole office in Minnesota is dedicated to extra-judicial traffic rulings above and beyond what the judge thought was reasonable. I think it's wrong. Empower somebody like the FAA to make fast decisions when there are actually lives at stake, but everything else which could reasonably be judged one way or the other should go through somebody capable of judging it (maybe...a judge). Even FAA rulings probably ought to be vetted once they're less time sensitive.

arcticbull 2y ago
> Imagine two years after the fact some bureaucrat sent a letter informing you that because of your previous bad decisions you're unable to drive. Driving is a privilege, and the state will no longer grant that privilege to you. Ex post facto laws are generally unconstitutional. Generally -- especially as it imposes a new punishment after you've already been punished. Something like this would almost certainly be implemented as "X driving infractions committed on or after [date law is effective]." [edit] in administrative law, retroactive application is only permitted when congress has explicitly given retroactive power to an agency.
- olliej 2y ago
  This is not an ex post facto law - the question is purely "are the terms of your contract enforceable?". For example I can make a contract that has a term "all people of gender/race/age X must be paid no more that 50% of the amount paid to people of gender/race/age Y", but if I were to then sue a person that agreed to this contract they would immediately be able to say "that term is not enforceable". The FTC ruling on non-competes is no different - no one is saying "a non-compete clause breaks the law in a way that would allow criminal or civil suits", they are saying "this clause is not enforceable" (plenty of standard contract terms are not enforceable depending on state and/or country, and the unenforceable nature of the term does not - for better or worse - invalidate the entire contract).
daft_pink 2y ago
I don’t think this is really an argument for or against non-complete agreements in the United States. It’s basic United States separation of powers. If Congress passed a law eliminating or banning non-completes, then it would be legal. As an asdie, it seems that the Biden administration is positioning itself to overstep it’s authority with things it feels would be popular with specific voting blocks that will obviously be overturned by the courts and then position that the courts are too partisan. They are satisfied with how this works with voters even if the actual policies cannot actually be implmemented. I don’t think most serious observers felt this would make it through court review.
- hyeonwho4 2y ago
  In this case the US Congress has delegated to the FTC the power to regulate competition in interstate trade and markets. The relevant law is as follows: " (1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. (2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings and loan institutions described in section 57a(f)(3) of this title, Federal credit unions described in section 57a(f)(4) of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of subtitle VII of title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227(b)], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce." The FTC has argued noncompetes constitute unfair or deceptive practices which affect commerce. The judge has disagreed.
  - lumb63 2y ago
    The term “unfair” is extremely vague, and now (as it probably should be, IMO), laws are interpreted by the judiciary. If Congress wants a specific practice banned, then they can make a law to do so, rather than allowing unelected career bureaucrats to interpret the law as they see fit.

by hansvm 2y ago

arcticbull 2y ago

> Imagine two years after the fact some bureaucrat sent a letter informing you that because of your previous bad decisions you're unable to drive. Driving is a privilege, and the state will no longer grant that privilege to you. Ex post facto laws are generally unconstitutional. Generally -- especially as it imposes a new punishment after you've already been punished. Something like this would almost certainly be implemented as "X driving infractions committed on or after [date law is effective]." [edit] in administrative law, retroactive application is only permitted when congress has explicitly given retroactive power to an agency.

olliej 2y ago
This is not an ex post facto law - the question is purely "are the terms of your contract enforceable?". For example I can make a contract that has a term "all people of gender/race/age X must be paid no more that 50% of the amount paid to people of gender/race/age Y", but if I were to then sue a person that agreed to this contract they would immediately be able to say "that term is not enforceable". The FTC ruling on non-competes is no different - no one is saying "a non-compete clause breaks the law in a way that would allow criminal or civil suits", they are saying "this clause is not enforceable" (plenty of standard contract terms are not enforceable depending on state and/or country, and the unenforceable nature of the term does not - for better or worse - invalidate the entire contract).

daft_pink 2y ago

I don’t think this is really an argument for or against non-complete agreements in the United States. It’s basic United States separation of powers. If Congress passed a law eliminating or banning non-completes, then it would be legal. As an asdie, it seems that the Biden administration is positioning itself to overstep it’s authority with things it feels would be popular with specific voting blocks that will obviously be overturned by the courts and then position that the courts are too partisan. They are satisfied with how this works with voters even if the actual policies cannot actually be implmemented. I don’t think most serious observers felt this would make it through court review.

hyeonwho4 2y ago
In this case the US Congress has delegated to the FTC the power to regulate competition in interstate trade and markets. The relevant law is as follows: " (1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. (2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings and loan institutions described in section 57a(f)(3) of this title, Federal credit unions described in section 57a(f)(4) of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of subtitle VII of title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227(b)], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce." The FTC has argued noncompetes constitute unfair or deceptive practices which affect commerce. The judge has disagreed.
- lumb63 2y ago
  The term “unfair” is extremely vague, and now (as it probably should be, IMO), laws are interpreted by the judiciary. If Congress wants a specific practice banned, then they can make a law to do so, rather than allowing unelected career bureaucrats to interpret the law as they see fit.