91视频

A couple of weeks ago, I went for a swim with my kids at my parents鈥� house. Like most parents, my mom 鈥渇ound鈥� some things of mine in the attic to give to me. I opened the box and saw an old WCW belt and a sign that just said 3:16. My son, who is like a barracuda, asked about the items. Of course, I explained how I used to watch a ton of wrestling, argued with family members about how it had to be real, and described cage matches, battle royales, tag teams, and how one never knew what the outcome would be.

While watching dockets and reading opinions is a lot less exciting than the People鈥檚 Elbow or the Hollywood Leg Drop, it can still lead to surprises. Earlier this month, a federal judge in Pennsylvania declined to issue an order to preliminarily block the Federal Trade Commission鈥檚 noncompete ban ahead of its Sept. 4 effective date. The court rejected the employer鈥檚 argument that the rule is an improper exercise of the agency鈥檚 authority, which conflicts with a ruling issued by a federal judge in Texas earlier this month, creating more confusion for employers. Outlined below, consider: (1) the entrance music (where we are); (2) the match (what we can expect); and (3) purchasing pay-per-view (how to prepare).

The entrance music

The FTC aims to upend the world of noncompetition agreements with a startlingly broad rule that would block businesses from enforcing most noncompetes and require employers to provide notice to current and former workers that their noncompetes are no longer valid.

The match

There are 鈥渢hree pertinent matches.鈥�

• Texas. The U.S. Chamber of Commerce and others joined a lawsuit in Texas filed by an employer seeking to block the rule from taking effect. Technically, the parties to that lawsuit won in a July 3 ruling that concluded that the FTC likely lacked the authority to issue the rule. The judge issued a preliminary injunction that applies only to the five entities that sued the FTC and no one else. And the judge again further declined to extend the ruling nationwide in a separate ruling on July 11. The judge indicated she would issue a final merits disposition by Aug. 30. The parties have asked for a permanent nationwide junction in that case. Interestingly, in this 鈥渕atch鈥� the judge disagreed with the Pennsylvania court and concluded the FTC鈥檚 noncompete ban is likely unlawful.
• Pennsylvania. In this case, a tree services company filed a claim attacking the noncompete rule in much the same way as the U.S. Chamber of Commerce did in Texas. The judge denied the request for a preliminary injunction. While the judge could have limited her ruling regarding the facts of that specific case, she opted for a more expansive holding that the FTC does in fact have legal authority to impose the ban.
• Florida. There is a pending claim in a federal court in Florida that could produce a nationwide injunction. However, that case is procedurally well behind the Pennsylvania and Texas actions.

If none of these 鈥渕atches鈥� results in an injunction at the trial court level, the next avenue of relief lies with the 鈥渞ematch clause鈥� via a federal court of appeals. The U.S. Chamber of Commerce could ask the Fifth Circuit Court of Appeals, or the Pennsylvania employer could ask the Third Circuit Court of Appeals for relief prior to the Sept. 4 effective date.

Purchasing pay-per-view

Watching a wrestling match through an illegal stream is almost as risky as hoping the FTC鈥檚 notification obligations get overturned.聽Therefore, if you haven鈥檛 acted yet, you may want to purchase the PPV and get up to date on compliance. While a more detailed overview can be found online, here is a quick five-step plan to improve compliance:

• Develop a personalized strategy plan. Work with legal counsel to come up with a solution that works for your business.
• Use the next few weeks to take stock. You might want to take some preliminary steps to hedge your bets.
• Begin plotting alternatives. There are other ways to protect your interests.
• Don鈥檛 ignore other restrictive covenants. Review your non-solicitation, non-recruitment, non-servicing, and non-disclosure clauses for compliance with state law.
• Get your trade secrets house in order. Identify your trade secrets and ensure that you have proper policies and procedures in place to protect them.

Unfortunately, much like one can鈥檛 always count on a surprise pinfall to save your favorite wrestler from losing the championship belt, an employer can鈥檛 rely on the courts to block the rule and free it from its obligations. Instead, it is better to spend time and resources becoming compliant, even if it means such efforts are as futile as a wrestler鈥檚 elaborate entrance for a no鈥憇how opponent.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers鈥� interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.