Live data from Hacker News

Massachusetts Governor Announces Plan to Abolish Noncompetes

bostinno.streetwise.co

91–100 of 119 posts

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#91
post #26

This is good news for and from Massachusetts. I read a very interesting thing about how non-compete agreements signed in other states are treated in California... http://lawzilla.com/content/noncompete.shtml "Who wins often depends upon a race to the courthouse. For multi-state employers it is often a rush to the courthouse to determine if a non-compete agreement is valid. The employer's strategy is to get an order o…

As most other authorities describe in greater detail--it doesn't matter who wins the race to the courthouse. The non-compete will be valid in whatever state was selected as choice-of-law, but the non-compete provisions will be invalid in California because California generally prohibits non-competes except in very limited circumstances (such as owners of the company).

Consequently, a non-California non-compete is not valid within the state of California, even if another state's court validates it. This means that so long as the employee remains within California, the non-compete cannot bar them from seeking further employment in California, even if it would otherwise violate the non-compete. However, by the same token, even if a California court invalidates a non-compete, it only applies within California--the non-compete may remain invalid in other states (depending on their laws regarding non-competes) if the employee were to attempt to seek employment outside of California during the term of the non-compete.

See, e.g., http://ymsllp.com/news-and-publications/with-limited-excepti....

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#92
post #86

This is bad news for California. Which states are left with the non-competes?

Georgia passed making non-competes enforceable by referendum a few years ago. It passed overwhelmingly and many people attribute that to the ballot item being worded in a stunningly dishonest way.

http://ballotpedia.org/Georgia_Employment_Contract_Enforceme...

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#94
post #66
post #48

Earlier quoted context omitted.

This is a 'bootleggers and baptists'[1] situation, and it is almost impossible to determine the true motives of the politicians.[1] We might be suspicious of the motives of the politicians, but we should also consider that they may be operating with a variety of rationales, all difficult to disentangle. [1] http://en.wikipedia.org/wiki/Bootleggers_and_Baptists

It's an excellent term! It does capture why I am surprised that content distributors have lobbied against ISP favoritism. I want to believe that Netflix wants an entrepreneurial environment like the one that enabled their initial growth, but I can't help wonder if their greatest threat isn't some new upstart, and why they wouldn't be in favor of a large barrier to entry, even if it costs a nontrivial portion of their…

...I can't help wonder if their greatest threat isn't some new upstart, and why they wouldn't be in favor of a large barrier to entry, even if it costs a nontrivial portion of their revenues.

I have to imagine they are choosing a sizable chunk of a much larger pie instead of the vast majority of a tiny and shrinking pie.

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#95

Perhaps of interest is that non-competes are unenforceable against lawyers. There are many reasons but the prevailing reasons are that a non-competes against lawyers interrupt a client's right to hire counsel of their choice and otherwise significantly limit access to the Courts, both are constitutionally protected rights. Enforcement of non-competes in any jurisdiction is a complex analysis, where the scope, term an…

Non-competes are enforceable against lawyers in most states, including California. Indeed, in some states, non-competes are even mandatory in certain situations, such as the sale of a law practice, and violation of the non-compete is treated as an ethical violation that could result in bar sanctions.

However, non-competes for lawyers are more limited in scope--they only apply to partners, and only to specific areas of legal practice. Generally, the non-compete can only prohibit the lawyer from marketing or soliciting clients but does not prevent new or former clients from voluntarily choosing to hire that lawyer (and the lawyer agreeing to take on that client). The big exception relates to sales of a law practice--in that situation, the lawyer generally can't take on new or former clients in the same area of law as they sold.

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#96
post #6

It's worth knowing, maybe just because it's interesting, than even if pro-forma employee noncompetes are unenforceable, that doesn't mean all of them are. Get acquired sometime. Those noncompetes are binding, even in California.

California provides an exception to the non-compete prohibition which applies to owners. The theory is that someone in the position of meaningfully owning a company is in the position to compete with that company.

Generally, that means someone who owns a significant amount of the company (on a facts-and-circumstances basis) so just owning some stock or options in a startup isn't enough.

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#97
Non-compete clauses have their place in the law but they have in my view been abused in the employment context.

The classic case of a good reason for having an enforceable non-compete arises with the sale of goodwill in a business. Proprietor X sells his business for $10M and then sets up shop next door to steal the customers of the business back to his new, competing one. In effect, this is a case of theft. Someone pays value for the goodwill value of your business and that means (usually) mostly for the revenues resulting from continued business from its existing customer base. If you take that value for that asset, it is deemed unfair under law that you should be able to grab the asset back through immediate competition for that same customer base. Buyers are savvy enough to know this and therefore require that you enter into a non-compete clause as part of the sale. And the law says, "yes, indeed, this is a restraint of trade in that it limits what the seller can do in pursuit of his trade or business following the sale but it is a reasonable restraint of trade, and hence enforceable, because it protects the value of the goodwill interest bought by the buyer for which good value was paid." Even in enforcing such clauses, the law says that they are enforceable only to the extent they are reasonably necessary to fulfill the legitimate purpose the law seeks to protect. In the sale-of-business context, then, non-compete clauses are enforceable insofar as they are limited in scope (that is, in duration and in geographical reach) in a way that the law regards as reasonable.

The problem with non-compete clauses in the employment context is that they are almost inherently unreasonable in their application. I join company X as a developer. I leave my employment after two years and I want to pursue my livelihood in the same line of business that company X engaged in, albeit not using any of its confidential proprietary technology. Yet, even though I would respect its trade secrets and not do anything the law would regard as being innately some form of unfair competition, the non-compete clause imposes an absolute bar prohibiting me from pursuing my livelihood in my very area of strength for as long as it remains in effect. This can cost me money. It can cost me opportunities. It can represent a setback to my ability to continue to develop skill levels in areas that are important for my future. All this for what? I get nothing whatever for it. Unlike the seller who just walked away with a pile of cash for selling his goodwill interest, I am not paid for being burdened with this restraint. I am simply stuck with it, to my great cost. And what is the justification for this? Again, unlike the sale-of-goodwill context, an employer does not have some right to keep competitors out of his space. All kinds of people can compete with him. What he can do, via the non-compete, is arbitrarily keep me as a former employee out of his space. Why should he have that right? Well, there is no particularly good reason except insofar as my competing with him may allow me to misuse confidential proprietary information that I got from my former employment with him. Everything else is arbitrary. Of course, even states that give maximum enforcement to such non-compete clauses will require that they be limited in duration. But two years (or whatever) is two years and this does not make it more fair to the former employee.

California refuses to enforce non-compete clauses in the employment context except to the extent necessary to protect confidential proprietary information. It has long done so and this has not stopped major employers from thriving with their tech companies in this state. Even companies that are located elsewhere have always been required to abide by these rules with respect to their employees who actually work in California. They have adapted over the years to the California rules with no serious setbacks to their financial interests.

I believe other states will in time be forced to conform to the California pattern as part of staying competitive in their bids to attract tech workers. I don't know the local situation in Massachusetts but would guess this is a key factor in the governor's decision to push for change.

In any case, this is one area where the idea of reasonableness is important to how the law should be shaped: if there is an awfully good reason why a non-compete clause should be enforced (such as in the sale-of-goodwill context), let the law enforce it to protect legitimate interests; otherwise, it is arbitrary and unreasonable and hence an unenforceable, illegal restraint of trade. This should be the rule everywhere, not just in California.

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#98
post #3

Non-competes are anti-business, anti-innovation and feudal. I have never signed one. I can't tell you how many times I have been asked to sign one that locks up your skills, which you are bringing to the company that they might not have yet, solely for them for years even though the project might only be 3-6 months. I applaud this effort immensely in MA, there is no place for non-competes in the US. It is entirely an…

Non-competes are very much pro-business, in that they weaken the power of labor.

Yes they do, but they also weaken the labor pool. Their primary purpose as used nowadays is not to protect any vital business interest but to make it difficult for employees to move around the marketplace and seek their best rate.

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#99
post #64

Earlier quoted context omitted.

Non-competes are very much pro-business, in that they weaken the power of labor.

Capitalism is an adversarial system. People forget that.

No, it's not. People forget that.

Re: Massachusetts Governor Announces Plan to Abolish Noncompetes

#100
post #86

This is bad news for California. Which states are left with the non-competes?

Most AFAIK. My understanding (IANAL) is that, in Massachusetts for example, it's not that there are laws explicitly allowing non-competes on the books but, rather, that they're supported by common law spelled out through many precedents related to contract law, employment law, etc. I imagine the situation in many other states is similar. California is unusual in that they have specifically limited non-competes by statute.
Post reply on HN