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FTC announces rule banning noncompetes

ftc.gov

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Re: FTC announces rule banning noncompetes

#301

Post by mminer237 »

jameshart wrote: post #290
xpe wrote: post #272

Earlier quoted context omitted.

It is wise to look at an argument with extra caution when you see the phrase “unelected government agency”. There are (of course) valid powers available to agencies. The question is what powers are valid. Beware the dark arts of rhetoric. I’m familiar with spotting this one because my constitutional law professor used it often. He helped us to see right through it. Logic and argumentation should win, not words design…

Indeed. Government agencies are overseen by officers of the United States, appointed by the president with the advice and consent of the senate, typically to terms greater than the length of either a presidential to senate term. Just like Judges. The idea that courts are the only delegates of the elected representatives of the people who are allowed to figure out the nuances of how to carry out the democratically leg…

The Supreme Court often dismisses cases for the entire reason that constitutionally it can't make laws. That's Congress's job. It's fair to be critical of how much Congress can punt its responsibility to a 4th branch of government with little oversight.

Re: FTC announces rule banning noncompetes

#302

Post by xpe »

oceanplexian wrote: post #258
JumpCrisscross wrote: post #34

Earlier quoted context omitted.

> FTC doesn't really have the ability to do this, since contract law is part of state law The federal government can absolutely regulate both employment and contract law. (Merger agreements are contracts. The FTC was established to block bad mergers.) Whether the FTC can do this is untested. But that’s more a Chevron issue than a federal powers one.

Chances are extremely high that the current Supreme Court nullifies or greatly restricts Chevron. These kind of announcements are fuel for the fire and are likely to accelerate its demise. They will kill this faster than they killed the COVID vaccine mandate. Govt. agencies can’t make laws, even if we may agree with them (I actually do in this case). However this isn’t the role of an unelected government agency.

> Govt. agencies can’t make laws

This is an unfortunately common response that often misses the point: U.S. government agencies do indeed have the power to make decisions with the force of law. Rule-making is a valid authority (subject to legal review of course)

Re: FTC announces rule banning noncompetes

#303

Post by ClumsyPilot »

freeopinion wrote: post #292
ClumsyPilot wrote: post #273

Earlier quoted context omitted.

> overworked USPTO granting clearly invalid patents Well no system can work that way - if judges in court were overworked and making invalid judgements, then the legal system would fail no matter what kind of laws you have and no matter what police does

These are pretty strange arguments. Why should an overworked USPTO lead to more patents? That assumes that the default is to grant the patent. If the default is to reject the patent, then an overworked office would not lead to more patents. An overworked Supreme Court does not lead to more Supreme Court decisions.

I think we are mixing up two different ideas

Suppose an institution is overworked, it has two options - long queue or rush the job.

Courts understand their role is important, so you have a long wait, but they d0 the job properly.

Patent office, perhaps, rushes the job. Now whether they issue too many or too few patents is maybe equally bad, in my view, it’s screwed up either way.

Re: FTC announces rule banning noncompetes

#304

Post by DebtDeflation »

datadrivenangel wrote: post #15

The rule goes into effect 120 days after it gets published in the federal register, and at which point all previous non-competes are unenforceable EXCEPT for senior executives. Senior executives cannot enter into new non-competes though.

How is Senior Executive defined? C-Level only? Named Executive Officers on the 10-K?

Re: FTC announces rule banning noncompetes

#305

Post by ClumsyPilot »

BobaFloutist wrote: post #291
ClumsyPilot wrote: post #278

Earlier quoted context omitted.

Productivity improvement in a physical application - it now takes fewer people less time to build a house It takes less resources to remedy a failed over bridge. You’d have to have a basket of measurement like how we measure CPI - current approach is lazy.

What if an innovation makes things better, instead of faster? The house takes just as long to build, but it's sturdier, longer lasting, better insulated, etc?

Well those are all measurable quantities, and you can measure them in proportion to their economic importance - like house insulation is a big change if you live in cold climate, etc.

I am not saying it’s easy, but economics is full of complex measurements, financial derivatives, and god knows what. Maybe they should spend some effort measuring the real world.

Re: FTC announces rule banning noncompetes

#306

Post by xpe »

bretthoerner wrote: post #11

My attorney friends tell me that the FTC doesn't really have the ability to do this, since contract law is part of state law. (My poor paraphrasing, not theirs.) I've been surprised I haven't seen this mentioned on social media or in the news. Are my friends wrong, or are people celebrating because this is just a step in the right direction even if it may not do anything yet?

I’m not a constitutional scholar, but I’ll say this —- there’s a reason this one is debated. It seems to me (with around 70% probability) that there are many possible constructions that could emerge which would more or less conform to the (rather contingent) bar for Supreme Court decisions.

I say contingent because the history of the Supreme Court is far from a deductive process of pure interpretation.

I recognize the utility of the Supreme Court while dismissing any grandiose claims of objective morality or obvious legality. It is a body of people after all.

Re: FTC announces rule banning noncompetes

#307

Post by mminer237 »

nojito wrote: post #297
modeless wrote: post #167

Earlier quoted context omitted.

The difference here is that Congress isn't banning noncompetes. The FTC is doing it. Different branch of government.

Congress established the FTC.

People seem a bit confused. There are a few separate legal questions here:

1. Whether Congress can ban noncompetes nationwide through its ability to regulate interstate commerce.

2. Whether Congress can say "so-and-so can make any laws he wants about x".

3. Whether this is in scope of the FTC's mission of preventing unfair trade practices.

To me, #1 is a clear no for intrastate agreements, but under Wickard it is constitutional.

#2 is yes under Chevron.

#3 seems an obvious yes.

The only question would be if SCOTUS decides now is the time to correct what it sees as prior incorrect decisions.

Re: FTC announces rule banning noncompetes

#308

Post by dpe82 »

robertlagrant wrote: post #70
dpe82 wrote: post #18

Earlier quoted context omitted.

Because we have a Democratic administration that is taking this stuff seriously.

Seriously, though. Why now?

New rules take time. Depending on the complexity of the regulation it can take a year or two to write (lots of internal reviews) and then there's a long statutorily-required public comment period during which an agency is required to read and address every comment. For this regulation, the public comment period appeared to start Jan 8, 2023.

You can see the public history here: https://www.regulations.gov/docket/FTC-2023-0007/document

Re: FTC announces rule banning noncompetes

#309

Post by oceanplexian »

mrandish wrote: post #266
LeifCarrotson wrote: post #59

Full text of the ruling here: https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete-rule... It's not surprising after thinking about it for a minute, but it did startle me to read that the FTC measures innovation by the number of patents issued. > In addition, the final rule is expected to help drive innovation, leading to an estimated average increase of 17,000 to 29,000 more patents each year for the next 10 year…

> I've always thought of that as representing a stifling of innovation. Sadly, over my long career as a tech startup entrepreneur, my experience has been that your assumption is correct the vast majority of the time. Now when I teach or mentor young tech entrepreneurs I'm often explaining why they probably don't want to prioritize filing patents as part of their startup strategy. While there are certain exceptions, e…

Pardon my language but the patent thing has turned into a **** measuring contest, and serves no useful purpose.

When I worked at FAANG you had a whole class of PE engineer who literally couldn’t build anything to save their lives. But they would constantly file patents with a frenzy like IT guys rack up certifications. Of course when the patent office gets an application from $FAANG they approve it.

And people who aren’t in the know just see patent on the resume and keep hiring these people thinking they are the next Elon Musk or something, unfortunately.

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