Antitrust Implications of Noncompete and Nonsolicitation Agreements
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Antitrust
- event Date
Wednesday, November 4, 2020
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will analyze noncompete and nonsolicitation features of employment agreements, service contracts, and agreements among competitors from an antitrust perspective. The panel will discuss how to balance competitive vs. noncompetitive effects of these agreements and best contracting practices to help minimize antitrust scrutiny.
Mr. Clark represents businesses of all sizes in complex business and employment-related disputes before state and federal courts and arbitration tribunals, with particular experience handling matters concerning the movement of people and information between different employers, including issues arising out of non-compete and non-solicit agreements (restrictive covenants), trade secrets, and compensation disputes. Clients also rely on Mr. Clark to litigate employment-related disputes involving claims of discrimination, harassment, and unpaid compensation, and commercial matters involving breach of contract, fiduciary duty, fraud, unfair competition, corporate governance, securities, RICO, and ERISA issues. He is co-editor of the firm’s Trade Secrets & Employee Mobility Blog and he writes and speaks frequently, including lecturing on restrictive covenants and civil litigation.
Mr. Dolive's practice covers a broad-range of business disputes and employment matters, from the outset of the dispute to the final appeal. He practices in the firm’s Commercial Litigation Practice Group and has litigated many types of business disputes. He also represents employers, providing advice on employment laws and collective bargaining and litigating employment claims and ERISA matters.
Mr. Pollard is a trial lawyer and commercial litigator and focuses his practice on competition law. He has extensive experience litigating a wide-range of competition claims, including non-compete, trade secret, trademark, false advertising and antitrust claims. He has been quoted on non-compete and trade secret issues in the Wall Street Journal, Bloomberg, FundFire, Digital Guardian, and more. He has appeared on a PBS NewsHour national segment on non-compete litigation. He has been quoted on issues of litigation strategy and trial practice by The Expert Institute. His articles have appeared in numerous publications including Litigation Commentary & Review, Law.com and Law360. He has taught continuing legal education courses on non-compete and trade secret litigation to other lawyers.
Antitrust authorities are increasingly scrutinizing noncompete provisions in employment agreements and other contracts. Because employment noncompetes limit where an employee can work, the employee may challenge these clauses as an unreasonable vertical restraint under the Sherman Act. Nonsolicitation or no-poaching agreements between service contractors and competitors may present additional antitrust issues.
The FTC and DOJ released its Antitrust Guidance for Human Resource Professionals in 2016, indicating the DOJ will conduct criminal investigations of competitors that agree to fix wages or other terms of employment or agree not to recruit another company's employees. Companies that compete for similar employees may be deemed "competitors" regardless of their business models.
To help minimize antitrust scrutiny, employers' use of noncompetes should confer some pro-competitive benefits. Employers should generally avoid entering into noncompete agreements with employees without access to sensitive information or specialized knowledge or skills. Any noncompete agreement should be tailored to the employer's specific circumstances and should further a legitimate business interest.
Companies may wish to carefully tailor (or avoid) nonsolicitation agreements with departing employees, service providers, and other potential competitors to avoid any appearance of collusion, which might give rise to antitrust liability.
Listen as our authoritative panel examines the antitrust issues that can arise from the use of noncompete and nonsolicitation agreements. The panel will also offer practical advice on when such agreements are appropriate and how they should be crafted to avoid antitrust scrutiny.
- Treatment of noncompetes under antitrust statutes: rule of reason
- Nonsolicitation and no-poaching agreements: 2016 guidance
- Drafting agreements to withstand antitrust scrutiny
- Noncompetes
- Nonsolicitation/no-poaching
The panel will review these and other key issues:
- When is a noncompete appropriate in an employment agreement and when might it violate antitrust standards?
- What other types of agreements include noncompete provisions and what are the antitrust pitfalls?
- What is the current FTC and DOJ position on nonsolitication and no-poaching agreements among competitors, and who is deemed a competitor?
