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An important federal appeals court has clarified a key principle of antitrust law in a way that potentially makes it more difficult for an employer to win a motion to dismiss, and thereby avoid expensive discovery, with respect to company agreements that contain commonly used hiring restrictions.

The drumbeat of opposition to non-compete agreements is getting even louder, as New York is now poised to enact a law that, if passed, would create sweeping prohibitions against non-competes in that state.

While employers wait to see whether, and to what extent, the Federal Trade Commission enacts its proposed rule banning non-competes, the Office of the General Counsel for the National Labor Relations Board (the “NLRB”) has joined the fray, denouncing the legality of restrictive covenants.

On April 28, 2023, U.S. District Judge Victor A. Bolden issued the latest blow toSteve Medlock, Craig Seebald, Rami Rashmawi, Becky Baker the Department of Justice’s (“DOJ”) efforts to criminally prosecute individuals who engage in “no-poach” agreements by granting the defendants’ motion for judgment of acquittal.

On January 5, 2023, the Federal Trade Commission (“FTC”) announced plans to prohibit employers from imposing or enforcing non-compete clauses in agreements with workers, including employees and independent contractors, in almost all contexts.

In 2021, the District of Columbia passed a “Ban on Non-Compete Agreements” (the “Ban”) purporting to ban most non-compete agreements, except in connection with the sale of a business.

Can an employee working for an Illinois company bust their non-compete by resigning after 1 year and 364 days of employment?

News outlets have run wild with coverage of President Biden’s July 9, 2021 Executive Order (the “EO”), encouraging the Chair of the Federal Trade Commission (“FTC”) to work with the “rest of the Commission” to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

My colleagues and I have written much recently regarding governmental antitrust authorities’ review of no-poach conduct (for example, see here). But let us not forget the additional scrutiny such agreements can face in commercial litigation.

On March 15, 2021, the District of Columbia’s new “Ban on Non-Compete Agreements Amendment Act of 2020” is projected to pass Congressional review and become law.

Last week, the mayor of Washington, D.C. signed into law the “Ban on Non-Compete Agreements Amendment Act of 2020.”