FTC | Beck Reed Riden LLP

11Feb2023

Stephen Riden Featured in The National Law Journal on Noncompetes

February 11, 2023

Federal Trade Commission, FTC, National Law Journal, stephen riden, steve riden Federal Noncompete Regulation, News, Noncompete agreements

A recent issue of The National Law Journal features discussion with Steve Riden in an article titled “Legal Industry Is Split on FTC’s Proposed Ban on Non-Competes.”

The article covers the Federal Trade Commission’s proposed Noncompete Clause Rule, which would essentially ban all employee noncompete agreements. The report was written by Christine Schiffner, Bureau Chief for the National Law Journal in Washington, D.C.

In the article, attorneys discuss a variety of viewpoints about the value of noncompete agreements, and assess the FTC’s proposal to restrict such provisions. Steve Riden is quoted as follows:

“We would suggest that the FTC reconsider an outright ban of non-compete agreements,” said Boston-based Beck Reed & Riden partner Stephen Riden. He and the firm’s other name partner Russell Beck spearheaded the publication of an open letter signed by 59 attorneys underscoring the effectiveness of non-compete agreements to protect trade secrets and “stealing confidential company information” when employees leave their jobs. His firm is also planning to actively weigh in during the FTC’s public comment period.

***

While 47 U.S. states currently permit non-competes and three states have enacted bans, Riden points out that “there are measures that can be taken to soften the impacts of non-competes,” including clear disclosures and more transparency during the hiring process. “Companies could provide notice of the non-compete agreements before the employee accepts the job,” Riden said—“so employees start a new role with their eyes wide open.”

***

While the FTC argues that the new rule would promote “greater dynamism, healthy competition, and innovation,” defense attorneys disagree. Particularly in circumstances of employees handling confidential or even trade secret information, non-compete clauses “give the old employer the opportunity to protect and further capitalize on the confidential information,” Riden said.

Steve has substantial experience representing companies and individuals in trade secret, noncompete, and unfair competition matters.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

25Jan2023

Russell Beck to Speak on Massachusetts Lawyers Weekly Panel About Proposed Noncompete Ban

January 25, 2023

Steve RIden

Federal Trade Commission, FTC, massachusetts lawyers weekly, russell beck Federal Noncompete Regulation, News, Noncompete agreements

Russell Beck will appear on a panel assembled by Massachusetts Lawyers Weekly titled “FTC Proposes Nationwide Ban on Non-Competes.”

The seminar will focus on the Federal Trade Commission’s proposed Noncompete Clause Rule, which would essentially ban all employee noncompete agreements. The free event will be held on Monday, January 30, 2023, at 2:00 p.m. ET on Zoom. More information and registration is available here.

Anyone who is unable to attend the live session should still register, as Lawyers Weekly will send a recording and the slides after the presentation.

Panelists will discuss the current landscape, what the rule says, what the impact will be on employers, what the timeline might be for implementation, the implications for non-disclosure agreements and other restrictive covenants, what alternatives the FTC might consider, and what businesses can do.

or up-to-the-minute analysis of legal issues concerning trade secrets and non-compete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell frequently writes and speaks about current efforts to regulate noncompete agreements. He was featured on NPR and quoted in the New York Times discussing federal regulatory efforts targeting noncompete agreements. In January 2023, Russell was quoted in a Bloomberg Law article about the FTC’s proposed rule, and he wrote an article for Law360 called “Companies Must Brace For FTC’s Overbroad Noncompete Rule.” In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2020 Chambers USA Guide, which stated that Russell Beck is “an expert in the field of trade secret and restrictive covenant law,” and is also noted for his “ability to adjust and come up with successful solutions.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

22Jan2023

Russell Beck to Speak at MCLE About Proposed Noncompete Ban

January 22, 2023

Steve RIden

Federal Trade Commission, FTC, mcle, russell beck Federal Noncompete Regulation, News, Noncompete agreements

Russell Beck will be speaking at the Massachusetts Continuing Legal Education’s seminar on the Federal Trade Commission’s proposed Noncompete Clause Rule, which would essentially ban all employee noncompete agreements.

The presentation, titled “FTC’s Proposed Rule Banning Noncompetes,” will take place online on January 25, 2023, from 9:30 to 10:30 a.m. ET.

Registration and additional information for the MCLE program can be found here.

According to the description of the program, “[o]n January 5, 2023, the Federal Trade Commission announced a groundbreaking proposed rule, which would ban employee noncompetes. The proposed rule, if enacted, will completely change the landscape on restrictive covenants and trade secret protection. Not only would employers be unable to use or enforce noncompetes, they would be required to take steps to rescind existing noncompetes and notify employees that they are no longer enforceable. The proposed rule, which President Biden urged the FTC to adopt, purports to preempt all state law on noncompetes, including centuries of case law and significant recent state legislative efforts.”

MCLE describes the target audience for this program as follows:

Employers and employees need to be aware of and begin to plan for the possible adoption of the proposed rule (or a revised version thereof). Interested parties should also take advantage of the 60-day period to comment to the FTC on the proposed rule. This fast-track program is designed to assist lawyers in advising their clients in planning for compliance.

_____

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

15Jan2023

Russell Beck Featured in Bloomberg Law on Noncompete Agreements

January 15, 2023

Steve RIden

Beck Reed Riden, Bloomberg Law, Federal Trade Commission, FTC, noncompete, noncompete agreements, noncompete legislation, Noncompete Reform, noncompete regulations, russell beck Federal Noncompete Regulation, News, Noncompete agreements

Russell Beck was quoted in a Bloomberg Law article about the FTC’s proposal to ban noncompete agreements.

The story is titled “FTC’s Noncompete Ban Mirrors State Proposals Before Scaling Back.” The January 9, 2023, article was written by Chris Marr, who writes about labor & employment news for Bloomberg Law.

The article discusses the proposed rule recently issued by the Federal Trade Commission that would essentially ban noncompete agreements.

The article quotes Russell as follows:

“I expect that the FTC will pare back the proposed rule to make it address the abuses,” which include “using them for low-wage workers, using overly-broad noncompetes, and disclosing the requirement of a noncompete the day the employee shows up for work,” said Russell Beck, an employment lawyer with Beck Reed Riden LLP in Boston.

The FTC rule is widely expected to face legal challenges, as many lawyers and business interests such as the US Chamber of Commerce question whether Congress delegated such broad rulemaking authority to the commission.

“Even though the FTC likely doesn’t have authority to issue any rule on employee noncompetes outside of mergers, I think if they create a narrow rule, it will be far less likely to be challenged,” Beck said.

____

Russell frequently writes about current efforts to regulate noncompete agreements. He was featured on NPR and quoted in the New York Times discussing federal regulatory efforts targeting noncompete agreements. In January 2023, Russell wrote an article for Law360 called “Companies Must Brace For FTC’s Overbroad Noncompete Rule.” In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate.

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

14Jan2023

Russell Beck Publishes Article on Proposed Noncompete Ban

January 14, 2023

Steve RIden

Federal Trade Commission, FTC, Law360, russell beck Federal Noncompete Regulation, News, Noncompete agreements

Russell Beck‘s article about the Federal Trade Commission’s proposal to essentially ban noncompete agreements was published by Law360 under the title, “Companies Must Brace For FTC’s Overbroad Noncompete Rule.”

The FTC’s proposed rule follows President Biden’s Executive Order on noncompete agreements

In the article, Russell reports that:

On Jan. 5, the FTC proposed a rule called the Noncompete Clause Rule, which would essentially ban all employee noncompetes, as well as any other restrictive covenant — including nondisclosure agreements — that can be interpreted by the FTC as a de facto noncompete.

The proposed rule would bar new noncompete agreements, and retroactively invalidate all existing noncompetes

ussell observes that the FTC’s

throw-the-baby-out-with-the-bathwater approach is a mistake. While a bright-line rule provides clarity and certainty, the unintended consequences are likely to be extreme and can potentially dwarf the benefits of a complete ban.

For example, the rule would almost certainly result in more trade secrets being unlawfully taken to a competitor. The theft of trade secrets is already estimated to cost the economy hundreds of billions of dollars a year and was a principle driver of the 2016 enactment of the Defend Trade Secrets Act.

Given the FTC’s move to ban noncompete agreements, Russell says the time to act is now:

Immediate action is required.

First, become part of the discussion. The FTC has requested public comment on virtually everything in its 218-page notice. Whether you use noncompetes or oppose their use, if you have something useful to add to the discussion, add it. This is the time to voice your opinion before it’s too late. But I encourage an honest debate with supportable facts and argument, not rhetoric and hyperbole.

This has been a four-plus year process that is crescendoing now. This will be the last chance for companies and individuals to provide input. If you have any, provide it. And do it now. You have 60 days from the date the notice is published in the Federal Register. While the FTC is almost certainly going to promulgate a rule, it has signaled a willingness to consider shifting to a more balanced approach.

In addition to the suggestion to give comments to the FTC, Russell also suggests that companies should stop using noncompete agreements for low-wage workers.

Russell concludes that

The FTC’s proposed rule needs to be a wake-up call. Companies need to immediately take steps to provide their input to the FTC and, simultaneously, brace for its impact — which may be far from certain for many months to come.

_____

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

11Feb2022

Russell Beck Featured in Bloomberg Law on Noncompete Agreements

February 11, 2022

Steve RIden

Beck Reed Riden, Bloomberg Law, FTC, noncompete, noncompete agreements, noncompete legislation, Noncompete Reform, noncompete regulations, russell beck, Uniform Law Commission Federal Noncompete Regulation, News, Noncompete agreements

Russell Beck was quoted in a Bloomberg Law article about recent state initiatives to regulate the use of noncompete agreements for low-wage workers.

The story is titled “Red State Lawmakers Look at Noncompete Bans for Low-Wage Workers.” The February 9, 2022, article was written by Chris Marr, who writes about labor & employment news for Bloomberg Law.

The article discusses recent legislative efforts in several states to regulate or prohibit the use of non-competition agreements for lower-wage and hourly workers.

The article quotes Russell as follows:

Research suggests 18% of the U.S. workforce is bound by a noncompete, and 38% of workers have signed one previously.

How often employers attempt to enforce noncompetes against low-wage workers is difficult to measure, said Russell Beck, attorney at Beck Reed Riden LLP in Boston, whose practice focuses largely on employment covenants. Enforcement sometimes happens through civil litigation, but can also take the form of a verbal reminder or a cease-and-desist letter to the employee, he said.

“There are a lot of low-wage workers bound by noncompetes and complying with them, even when they might not in fact be enforceable,” Beck said.

Russell explains that the recent legislative activity at the state level mirrors federal efforts to regulate noncompete agreements:

The state legislative activity also comes as the Federal Trade Commission considers nationwide regulation to limit noncompetes—a process still in the research stage, Beck said. President Joe Biden called on the FTC last July to ban or limit employee noncompetes as part of a sweeping executive order aimed at improving competition in the economy.

In the article, Russell also addresses the national influence of model legislation to reform noncompete agreements that was published last year by the non-partisan Uniform Law Commission:

Release of the commission’s model should help motivate more states to establish clear standards for enforceability of noncompetes, as well as similar covenants such as nonsolicitation agreements, said Beck, who helped write that sample bill.

Business groups have an incentive to want clear, uniform standards, he said, since now many states’ courts determine whether noncompetes are enforceable on a case-by-case basis relying on common law. But don’t expect a rush of states suddenly all adopting the model language, he added.

“It won’t be overnight. It will take years” to potentially get to a majority of states adopting some version of the model, Beck said. “States are really taking a careful look at their current laws.”

Russell notes that the jury is still out as to whether regulations to limit enforcement of noncompete agreements has any measurable, positive impact on wages and other economic activity:

The success of existing state laws at preventing overuse or abuse of employee noncompetes is tough to measure, Beck and Farley each said.

Research into Oregon’s ban on noncompetes for low-wage workers—published by University of Maryland Professor Evan Starr and FTC Economist Michael Lipsitz—found the law might have helped produce a small boost to wage growth and job mobility. But Beck noted it’s hard to be sure whether the noncompete law was the main cause of those economic impacts.

____

Russell frequently writes about current legislative efforts to regulate noncompete agreements. He was featured on NPR and quoted in the New York Times discussing federal regulatory efforts targeting noncompete agreements. In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate.

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

8Feb2022

Russell Beck Featured in Law360 on FTC Noncompete Regulation Efforts

February 8, 2022

Steve RIden

Beck Reed Riden, Executive order, FTC, Law360, noncompete, noncompete agreements, noncompete legislation, Noncompete Reform, noncompete regulations, russell beck Federal Noncompete Regulation, News, Noncompete agreements

Russell Beck‘s article about a recent Federal Trade Commission and U.S. Department of Justice workshop focused on noncompete agreements was published by Law360 under the title, “What New FTC Workshop Revealed About Noncompete Regs.”

The FTC workshop follows President Biden’s Executive Order on noncompete agreements

In the article, Russell observes that:

Although the scope of the workshop was wide-ranging, there was a clear focus on noncompete agreements.

Indeed, the topic of noncompetes came up repeatedly throughout the course of the full, two-day workshop.

The discussion began with FTC Chair Lina Khan referencing noncompetes as “take-it-or-leave-it agreements.” And in the closing remarks Karina Lubell, assistant chief of the DOJ’s Competition Policy and Advocacy Section, noted that, like other vertical restrictions, noncompetes are harmful, “especially for low income and other workers ill positioned to negotiate” the restrictions “or later challenge them in court.”

During the workshop, panelists shared divergent perspectives and referenced various studies on the effects of restrictive covenants. In this regard, Russell writes that, “[w]ith so much conflicting information — studies contradicting other studies, evidence disproving studies, misplaced assumptions about the rise in use of noncompetes, etc. — and such high stakes (nothing short of the impact on the U.S. economy), regulators need to be extremely careful how they proceed. These issues are plainly more complicated than they appear, and there seems to be a general understanding that additional research is required.”

Russell’s article discusses a new study issued by the Federal Reserve Bank of Philadelphia that was not discussed during the workshop. In that study, the Federal Reserve Bank of Philadelphia’s study found “little support for the widely held view that enforcement of non-compete agreements negatively affects the entry rate of new firms or the rate of jobs created by new firms.”

Russell writes:

To the contrary, the study — which focused on Michigan’s 1985 elimination of a ban on noncompetes — found that increased enforcement [of noncompetes] had no effect on the entry rate of startups, but a positive effect on jobs created by these startups in Michigan relative to a counterfactual of states that did not enforce such covenants pre- and post-treatment. Specifically, we find that a doubling of enforcement led to an increase of about 8 percent in the startup job creation rate in Michigan. We also find evidence that enforcing non-competes positively affected the number of high-tech establishments and the level of high-tech employment in Michigan.

According to Russell, “[t]his study thus raises the serious prospect that bans on noncompetes intended to help startups will do precisely the opposite.”

____

Russell frequently writes about current federal efforts to regulate noncompete agreements. He was featured on NPR discussing President Biden’s Executive Order. In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate. In December 2019, Law360 also published an article by Russell Beck and Erika Hahn about federal noncompete reform efforts.

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

26Jul2021

Russell Beck Featured in Law360 on Federal Noncompete Order

July 26, 2021

Steve RIden

Beck Reed Riden, Executive order, FTC, noncompete, noncompete agreements, noncompete legislation, Noncompete Reform, noncompete regulations, russell beck News, Noncompete agreements

Russell Beck‘s article about President Biden’s recent Executive Order on noncompete agreements was published by Law360 under the title, “FTC Should Take Nuanced Approach On Noncompete Regs.”

Among other things, Biden’s order encourages the FTC to exercise its rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

Russell’s analysis begins with an overview of recent state and federal initiatives to restrict or eliminate the use of noncompete agreements. With respect to Biden’s recent directive to the FTC, Russell explains that “even assuming that the FTC has authority to regulate in this area, proper regulation of noncompetes is a very nuanced issue with which states have wrestled for over 200 years.”

n the article, Russell notes that there are competing viewpoints about what the FTC should do.

On one side, there are opponents of noncompete agreements who seek to ban them altogether, variously contending that “non-compete clauses inflict real harms on workers and competition and offer no credible offsetting benefits to society,” and that “employers use non-compete clauses to discourage workers from seeking, or even exploring, alternative work and business opportunities.”

On the other side, Russell notes that there are many who urge restraint and suggest “that any regulation should focus on leveling the playing field and adding additional transparency and fairness to the use of noncompetes.” This was the approach suggested by Russell Beck and scores of other experts in the field who recently submitted a letter to the FTC.

Given that it may be more than a year before the FTC issues any noncompete regulations, Russell advises that companies take the following three steps now:

Reach out to the FTC to share your view.
Review any restrictive covenant agreements, including those contained not just in employment agreements, but in restricted stock unit agreements, stock option agreements, long-term incentive agreements and other agreements. Also, review all policies and codes of conduct and strengthen them as appropriate.
Make sure that there is a culture of confidentiality at your company. Training is critical. If you are not providing training at all stages of the employment life cycle — at the time of onboarding, during the employment relationship, and at off-boarding — you are potentially exposing your work to contamination by someone else’s information, and exfiltration and loss of your own trade secrets.

Russell was recently featured on NPR discussing President Biden’s Executive Order. In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate. In December 2019, Law360 also published an article by Russell Beck and Erika Hahn about federal noncompete reform efforts.

____

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

20Jul2021

Russell Beck Quoted in NPR Coverage of Biden Executive Order

July 20, 2021

Steve RIden

Beck Reed Riden, Executive order, FTC, noncompete, noncompete agreements, noncompete legislation, NPR, russell beck, Weekend Edition Saturday News, Noncompete agreements

A recent episode of Weekend Edition Saturday on NPR featured Russell Beck in a story titled “What Biden’s Latest Executive Order Means For Businesses And Consumers.”

The story focused on President Biden’s recently-issued Executive Order. Among other things, the order encourages the FTC to exercise its rulemaking authorty “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

The story was reported by Andrea Hsu, NPR’s labor and workplace correspondent.

The following is a portion of Ms. Hsu’s interview with the host of Weekend Edition Saturday, Scott Simon:

Weekend Edition Saturday SIMON: Can [President Biden] do that – a federal ban on noncompete agreements?

HSU: Well, it’s unclear. It’s certainly not going to be immediate, and it may not be a total ban. I talked with Russell Beck. He’s this attorney in Boston who tracks state laws on noncompetes. He thinks the Federal Trade Commission is likely to do something narrower, maybe something focused on low-wage workers. But he doesn’t think they’ll ban noncompetes in all workplaces.

RUSSELL BECK: I would be very surprised if the FTC went so far as to ban noncompetes for people who really do have trade secret information, other confidential information that needs to be protected.

HSU: But Beck says it’s also in question whether the FTC has the authority to enact such a ban. You know, regulation of noncompete agreements has until now been left to the states. Three states already ban them, California being the biggest, and close to a dozen states ban them for low-wage workers. So even if the FTC does move on this, it’s going to take a while. I spoke to a former acting chair of the FTC, and she said we may see a proposed rule out fairly quickly, but federal rulemaking, you know, takes forever. It has to be submitted to Congress. There are public comment periods, revisions and so on. And so it could be a year before a rule is issued. And that, Scott, would be considered fast.

Listen to the full story here.

Russell Beck was also quoted by NPR in an article appearing online discussing the same topic as follows:

[A] sweeping federal rule would be a significant departure and is expected to be challenged by businesses. At a workshop held by the FTC in January 2020, questions were raised over whether the agency even has the authority to enact a ban. Given the likelihood of legal challenges, some expect the FTC to take a narrow approach, for example banning noncompete agreements for low-wage workers rather than for everyone.

“I think a considered approach would probably be the likely approach,” says Russell Beck, a Boston attorney who has represented both employers and employees in noncompete cases.

He says he’d be very surprised if the FTC went so far as to ban noncompetes for workers who possess trade secrets or other confidential information that warrants protection.

In April 2020, Russell Beck and Erika Hahn’s article about the FTC’s investigation about whether it should regulate noncompetes was published by Law360. In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate. In December 2019, Law360 also published an article by Russell Beck and Erika Hahn about federal noncompete reform efforts.

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For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over thirty years of experience working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (6th ed., MCLE, Inc. 2021), used by other lawyers to help them with their noncompete matters
Authoring the book Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE 2019), covering trade secrets nationally, with a focus on Massachusetts law
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administering the award-winning blog, Fair Competition Law
Establishing and administering the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,660 and 870 members, respectively, around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

6Apr2020

Russell Beck and Erika Hahn Featured in Law360 on FTC Regulation of Noncompete Agreements

April 6, 2020

Steve RIden

Beck Reed Riden, Erika Hahn, FTC, noncompete, noncompete agreements, noncompete legislation, russell beck, trade secrets News, Noncompete agreements

Russell Beck and Erika Hahn‘s response to the Federal Trade Commission’s investigation whether it should regulate noncompete agreements was published by Law360 under the title, “FTC Should Leave Regulation of Noncompetes to States.”

Russell’s response to the FTC’s inquiry can also be found at Fair Competition Law as “FTC Noncompete Workshop – Update on Our Submission.”

The analysis reflects the testimony submitted by 22 lawyers from around the country (including Russell Beck) to the FTC. In sum, the testimony asserts that

noncompetes have been regulated by the states for over 200 years, and all 50 states have made policy decisions that make sense for their citizens and their economies. In more than 30 of those states, legislatures have recently been reevaluating their law, with different outcomes that balance competing interests in a way that reflects the economic realities of the particular state.

Nevertheless, in no state does the law permit unfettered use of noncompetes, nor has any state banned noncompetes wholesale since 1890. Rather, each of the 47 states permitting noncompetes allows them to be used, to a greater or lesser extent, only as necessary to protect companies from certain types of unfair competition.

Russell and Erika’s article further contends that the FTC should refrain from regulating noncompete agreements, as follows:

The FTC should not use its rulemaking authority to address noncompete clauses. Rather, the states should be left to evaluate and regulate their own economies as they see fit — as they have done for over 200 years. There is no gap to fill. All 50 states have made policy choices — and more than 30 of them have recently or are currently reevaluating those choices, choosing outcomes that make sense for their unique circumstances.

To the extent that the FTC has authority to promulgate a rule and chooses to exercise it, the FTC should be judicious. Before considering any regulatory action, it is important to understand the potential unintended consequences of significant changes in the law, including, for example, significantly increasing the likelihood that trade secrets will be unlawfully taken to a competitor and increasing the volume of more costly trade secret litigation.

The article concludes that,

While the laws are certainly in a state of flux and should remain the purview of the states, any changes should be made only with a proper factual basis — not on misplaced assumptions.

In July 2019, Law360 published Russell Beck’s analysis of misconceptions in the noncompete debate. In December 2019, Law360 also published an article by Russell Beck and Erika Hahn about federal noncompete reform efforts.

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For up-to-the-minute analysis of legal issues concerning noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

Russell Beck’s work in this area is well recognized, and includes:

Over twenty four years of working on trade secret, noncompete, and unfair competition matters
Assisting the Obama White House as part of a small working group to develop President Obama’s Noncompete Call to Action
Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015), used by other lawyers to help them with their noncompete matters
Drafting and advising on legislation for the Massachusetts Legislature to define, codify, and improve noncompetition law
Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
Founding and administrating the award-winning blog, Fair Competition Law
Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 1,600 members around the world
Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2019 Chambers USA Guide, which stated that Russell Beck is a “terrific” attorney, who “is an excellent choice of counsel regarding noncompete agreements and the resolution of restrictive covenant disputes.” Chambers noted that Russell “basically wrote the new Massachusetts statute on noncompetes” and that “he’s an expert in employee mobility and nonrestrictive covenants.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.