FTC Wins Round Two in Its Non-Compete Ban Defense
jdsupra.com
jdsupra.com
The free market works best when competition isn't stifled, and the name of the clause is literally a "non-compete".
There also likely needs to be some additional compensation for lost time in the market when skills are atrophying or new experience isn't being gained.
Non-competes have a place, but there needs to be tons of rules around their use, like only being available for specialized and other high paid roles. Something like 3x-4x median salary to be a position eligible for a company to even propose a non-compete.
The list of customers of a company is something you should not be taking with you when you go work for a competitor. The next feature you will implement is non-public information.
A non compete is only about someone who you want to continue working for you. If the competitor offers a significantly better wage you didn't want to keep them in the first place (even if you offer match too bad - if you were serious you would have been paying them that much already), though of course the competitor needs to be serious (that is not hiring someone away and then letting them go). If you lay someone off then you don't want that person to work for you and the non-compete is obviously invalid.
[1] https://www.hchlawyers.com/business-law/contract-law/non-com...
[2] https://katzmelinger.com/understanding-non-compete-agreement...
It is too late or I'd edit my original post to make that clearer.
Businesses already have recourse for information like this. If they take reasonable steps to protect the customer list then they can sue the ex-employee for stealing trade secrets.
Companies don't have a face, so they don't need to keep it straight. They will simply amorally argue for anything that increases their money or power, and argue against anything that decreases it. They don't even need to be consistent, and are unburdened from human feelings like shame and hypocrisy. They can effortlessly argue for some principle XYZ when it helps them, and then turn around and argue against XYZ in cases where it hurts them.
In reality, in the vast majority of cases, the employers have much more leverage, and therefore non-competes aren't used as a negotiating tool for both parties, they're used by employers to stifle competition for labor and therefore stifle salaries.
That would be a grave mistake. I know people who are primarily voting to preserve this FTC.
That would also be a grave mistake. Unfortunately, it is not possible to "vote to preserve this FTC" anymore. That possibility ended when Biden was pushed out.
Biden is a major reason, arguably the only reason, Khan and Kanter are able to do what they are doing.
Harris is pro-Silicon Valley, as in she has not taken any meaningful _action_ against it (cf. rhetoric). Biden is definitely not pro-Silicon Valley. He made the right appointments and nominations and "ordered" agencies to take necessary action; indeed they have.
Some serious dark forest shit, even for HN. It sucks that there is so little accountability for those who deny access to information here.
There's very little that's given me hope for government like seeing an FTC that's doing something, thats protecting consumers & making sure there's some competition. It's been so very long since Reagan so effectively stomped out anti-trust regulation, and my gut feeling is that much of the disenfranchisement today has roots in the seemingly ever growing imbalances Thomas Piketty so thoroughly detailed. The FTC is a key agency to keeping civilization bought in on our social contract.
But man there is such a suppression of hacker spirit, of possibility, of everyday can do, of belief in the everyman and the barefoot developers. It's astoundingly how brutally malicious the conservative downvote squads are, and even more perniciously how much perfectly fine but inconvenient content gets flagged. It's hugely one sided; one side builds cases & tries to win hearts & minds, the other tears down, by any means available. So so rarely do I see conservative claims made on hopes or possibilities.
Personally I think downvotes & especially flags should be more open data. The ability for a small pack of people to so consistently come and downvote out things they don't like is lame & tragic. But to so readily suppress is especially rank & disgusting. There are some incredibly persistently techbro conservative voices on here, it feels like, leveraging their accounts with enormous widespanning consistency & frequency, to close down ideas & thoughts. And they get to operate entirely from the shadows, and that ain't cool at all.
At the very least there should be some way to see controversialness. It's hackerly to have some kind of data, to see pressure points! It stuns me how many things I have that are going up up up, only to have them get some down down voted. Seeing where there are these conflicts are, seeing that there strong valence both ways, I think would clarify a fundamental resonant truth of matters that right now is just cast away, lost to the losers of downvoting.
I thought the outcome of Chevron being overturned (I.e. “3-letter-agencies can no longer unilaterally make laws”) would have come up here as well, since the FTC is part of the Executive Branch
(Not trying to comment on the underlying case. Don’t care to argue for or against NCs)
What Chevron previously said is that, if the scope of the statutory grant of authority was ambiguous and the agency’s interpretation of that ambiguity was reasonable, then the court must defer to the agency’s interpretation. That requirement is now gone.
Without the Chevron rule, courts will still uphold a regulation that was clearly statutorily authorized under the same conditions as when Chevron was good law, and they will still overturn regulations that were clearly not authorized by statute just as they did under Chevron.
For ambiguous cases, the court now independently reaches their own judicial finding of law, just as they would if deciding whether a statute passed by Congress is authorized by the Constitution. Of course, courts still can and will give due consideration to the opinion of the agency and their subject-matter experts, just as they would consider the briefs and evidence from all parties to any dispute. Only the automatic deference which Chevron sometimes required is gone.
Regarding the FTC non-compete rule, neither court ruling relied on Chevron. One court found the relevant statutory authority to be sufficient through their own independent judicial analysis rather than through Chevron deference, and one found it to be insufficient (a finding which never involved Chevron deference).
It did and it didn't.
As parent was saying, Congress generally created each executive agency through a specific authorizing act, that also contained what it should do and its powers.
Chevron (or its overturning) has to do with what happens when that authorization was ambiguous.
Previously (Chevron), courts had to defer to the agency. Now they don't.
Neither of which changes what courts have to do when the authorization is not ambiguous. Which is a lot of times.
You can always imagine an ambiguity into existence. Chevron deference meant that wasn't enough and now it is. Human natural languages are naturally ambiguous. This Supreme Court ruling encourages courts, especially Right-leaning courts to just declare that oops, this text was ambiguous and so even though it's obvious to any normal person that Congress did intend exactly the regulation at issue, a court can argue it isn't sure they meant that and so the regulations have no effect until Congress finds the time to spell it out to the court's satisfaction, which may be never.
The bigger problem is that as judges find more and more tortured ways to fit their ideology onto the raw text this is further destroying trust in the justice system which erodes not just the republic, which presumably Republicans no longer give a shit about, but the United States of America itself, the country. Even an Autocrat needs that trust, the US isn't Monaco, it cannot be managed without a vast bureaucracy.
What's notable about the present Supreme Court isn't that they're partisans, that's inevitable under the US system for decades at least. What's notable is that they're not very good judges. Scalia wasn't great but he was smarter than several of the newer justices which is at least something. And Thomas is a joke, if this man was on my magistrates bench I'd have him kicked out.
When is the last time you saw a US Supreme Court decision which articulates a good principle of justice and uses that to explain the decision such that it seems in hindsight obvious and inevitable? There should be several of these each season, ideally the vast majority of decisions. Instead we get tortured logic and the sort of dubious attempts at reinterpreting somebody else's words by ignoring their plain meaning that would get you a poor grade in an undergraduate essay. This means more work for the justices, further over-burdening a system that is failing.
Take Obergefell. The dissents are pretty stupid, but even the Kennedy decision is poor work, if this gets a passing grade in BA Law the lecturer is too generous. Yes, James Obergefell ultimately deserved at least what this decision gave him, but the decision can't bring itself to articulate a core principle to explain that. If the Supreme Court can't or won't take such a stance, why even have one?
Congress has the ability to change the authorizing act if they believe that an agency is acting incorrectly when authorization is ambiguous.
If they do not do so - I would read that as congress intends the agency to act in the manner they are acting.
The court is now saying that failure to act is not a decision in itself, and that the courts are now allowed to decide - That feels like a fairly blatant power grab.
Why must congress be forced to continually act if the agency is making decisions it believes reasonable under the authorizations it granted? There will never be a law that lacks ambiguity - it's just not possible.
Chevron deference was in place for decades and congress steadily created more agencies and passed laws to restrict or add powers. If congress wanted Chevron deference gone, they had literal decades to have fixed it.
This wasn't ambiguity. This was corruption.
Does this mean that, in ambiguous cases, judges wind up in a position where their judicial expertise takes precedence over the technical expertise behind the statues?
So the rest of my comment discusses the case when opinions from a regulatory agency’s technical experts are somehow relevant to whether a regulation is valid and not just to the regulation’s merits or lack thereof.
Judges are still either encouraged or expected (I forget which) to give due respect to the agency’s technical experts, based on pre-Chevron precedents. They’re definitely not forbidden from doing so.
But for example, what if the challenger also presents technical expert opinions which run counter to the argument of the agency’s expert?
Under Chevron, the court had no authority to conclude that the challenger’s expert-informed argument was more likely to be right than the agency’s expert-informed argument when both arguments are reasonable.
Now that Chevron is overturned, the court does have that authority. Just like in every other case outside the former scope of Chevron where one or both of the parties presents expert opinions to the court.
That’s it.
Honestly, overturning Chevron is mainly as impactful as it is because Congress isn’t sufficiently active at legislatively clarifying its vague statutory grants of regulatory authority or removing some of the more important substantive decisions from the whims of frequently changing executive branch administrations. In a parliamentary system where the government is supported by a legislative majority, both the laws and the regulations can be adjusted as needed, not just the regulations.