Amanda Enyeart

#FTC Bans Most Non-Competes, Litigation Inevitable In a partisan vote of 3-2, the FTC, led by controversial Chair Lina Kahn, has voted to ban most employment-linked non-competes. But multiple legal challenges will follow, and they are highly likely to be successful. Rationale: The agency contends that approximately 30 million workers, or about 20% of the U.S. work force, are subject to a non-compete. FTC projects increases in wages resulting from its ban of something in the neighborhood of $300 billion per year, with employees having greater negotiation leverage and engaging in increased “job hopping”. No Help for Senior Executives: Senior executives, however, get carved out from the ban, supposedly because their non-competes are presumed to be a function of negotiation. Potential #Whistleblower Impact?: Because some potential whistleblowers have non-competes and are concerned that they may be frozen out of alternative employment if they are terminated or otherwise leave their employment, the ban, if implemented, could lead some employees to come forward with allegations of employer misconduct where they would not otherwise have done so. But Litigation Is Inevitable: The dissenting commissioners, both Republicans, acknowledged the inevitability of litigation in recording their “no” votes. One went so far as to predict the ban would be overturned. Claims: Plaintiffs interested in challenging the ban—and there are a whole lot of them—will be eyeing a long list of potential claims. Those will include that the FTC’s enabling statute does not authorize the ban, that the ban is otherwise arbitrary and capricious under the Administrative Procedure Act, and that Congressional authorization for such a fundamental rewrite of the relative roles of state and federal government in regulating non-competes runs afoul of the “major questions” doctrine. That doctrine prohibits agencies from seeking to address issues, not specifically delegated to them by Congress, where the issue has “vast economic and political significance”. Critics see the ban as the “quintessential” major questions problem. Courts: Multiple challenges will be filed in multiple courts, but a healthy bolus will be filed in decidedly regulation-skeptic jurisdictions, like the U.S. 5th Circuit, which includes Louisiana, Mississippi, and Texas. Stay tuned, folks, we are in for a bumpy ride here. #noncompetes #LinaKahn #majorquestions #apa #fca #healthcarefraud #healthcarecompliance

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Please bear with this civil practice rant, because I and numerous fellow e-filers I have spoken with cannot tolerate this any longer. Pursuant to Illinois Supreme Court Rule 11, all attorneys are required to have email addresses and place that email address on all pleadings and notices (even pro-se litigants who "have" email addresses must do the same). By that same rule, all attorneys are required to electronically file and serve all documents. What the rule does not require, unfortunately, is just how that electronic service occurs. Despite attorneys having to electronically file documents with filing services that can also electronically serve the litigants at the same time (what the rule calls "electronic filing service providers" and what most Illinois attorneys would recognize as something like Odyssey eFileIL), Rule 11 allows attorneys to circumvent the automatic electronic service at time of filing to instead serve the documents separately by individual email. Aside from breaking our carefully crafted email filters, forwarding systems, and pleading-specific email addresses, what exactly is the purpose of this provision when lawyers are required to file and accept all documents electronically? Not a month goes by in which a colleague does not mention how there is something "wrong" with Odyssey eFileIL because they are not getting file-stamped electronic service from another attorney, instead having to hunt through their inbox for one-off emails from legal secretaries and paralegals they have never heard from before to locate some pleading. I just recently had to explain to another attorney that he was not the victim of what he thought was some Odyssey eFileIL error; he was the victim of gamesmanship--he did not automatically receive a file-stamped copy from the Odyssey email he usually does because opposing counsel did not want him to receive one. Instead, his opponent had unchecked "efile and serve" to just "efile" and then had a paralegal send a non-file-stamped copy in an email to potentially be lost in the morass of IICLE sales, Daily Law Bulletin updates, and increasingly creative cold-callers getting over the spam filter ("sorry we couldn't connect!"). I hope someone on the Supreme Court Rules Committee can take this up to eliminate a rule that is no longer necessary now that we are all familiar with efiling. If a litigant is represented by counsel, service should occur at the same time as filing through the provided "efile and serve" option so that pleading service is always coming from the same place. Rule 11(c)(1)(i) is enough. Rule 11(c)(1)(ii) can go.

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