Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Four Key Takeaways from the FTC Director’s Remarks on the Proposed Rule to Ban Non-Compete Agreements

On January 11, 2023, Elizabeth Wilkins, the FTC’s Director of the Office of Policy Planning, spoke to the Capitol Forum about the FTC’s proposed rule to ban non-compete agreements.  This conversation was the most significant discussion of the proposed rule by the FTC since it was announced on January 5.  Below are the four most salient takeaways.

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Federal Trade Commission Proposes Sweeping Ban on Non-Compete Clauses

On January 5, 2023, the Federal Trade Commission (“FTC”) proposed an expansive new rule which would impose a near-complete ban on the use of non-competes (the “Proposed Rule”) by employers. The Proposed Rule is the culmination of the FTC’s recent efforts, following President Biden’s July 9, 2021 Executive Order on promoting competition in the economy, to enhance its scrutiny of anticompetitive practices and policies in the workplace. As a further sign of its priorities, just one day before issuing the Proposed Rule, the FTC announced enforcement actions against three companies claimed to have illegally imposed non-compete restrictions on security guards and glass manufacturing workers in violation of Section 5 of the Federal Trade Commission Act.

Read the full post on the Law and the Workplace blog.

A New Gateway Opens – More English Court Options for Victims of Overseas Fraud

Recent rule changes allow claimants full access to key English law mechanisms to discover the identity of defendants and location of assets, even where the wrongdoers and third parties are not based in England. This is highly relevant for victims of cyber-crime and crypto frauds.

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Prices and Profits Dominating the News

While states continue to lift their COVID related states of emergency, new price gouging claims are being made and ongoing price gouging litigation continues to wind through the courts.  The federal government also now appears more poised than ever to intervene in price gouging issues. 

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The Sound of “Silent Attorneys”: Judge Orders Google to Re-Review Emails Withheld for Privilege to which Counsel Never Responded

Back in May, we wrote about a pending motion before the U.S. District Court for the District of Columbia, in which the U.S. Department of Justice and several state attorneys general (“DOJ Plaintiffs”) sought to sanction Defendant Google and compel disclosure of all emails withheld for privilege that legal counsel received but never responded to (affectionately referred to as “silent attorney” emails).  The DOJ Plaintiffs claimed the silent attorney emails constituted artificial requests for legal advice intended to conceal sensitive business communications from discovery.  After the parties briefed the issues, the judge ordered that the parties identify cases in support of their positions on whether the judge had the power to issue sanctions for pre-litigation conduct, and further ordered Google to produce a random sample of 210 of the 21,000 “silent attorney” emails for the court’s in camera review.

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Two Copyright Claim Wrongs Don’t Make a Copyright Claim Right: Analyzing Melendez v. Sirius XM Radio, Inc.

On October 4, 2022, a Second Circuit panel affirmed the lower court’s decision that defendant Sirius XM Radio Inc.’s ads showcasing The Howard Stern Show do not violate plaintiff John Edward Melendez’s publicity rights. The ruling affirmed the Southern District of New York’s grant of defendant’s motion to dismiss plaintiff’s claims under California common and statutory law, agreeing that plaintiff Melendez’s claims were preempted by the Copyright Act, 17 U.S.C. § 301.

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Three Notable Antitrust & Tech Updates That May Have Flown Under Your Radar

Antitrust and tech is in the legal news almost daily, and often multiple times a day.  Here are a few recent developments with notable implications that may have flown under the radar: 1) renewed focus on gig economy issues; 2) potential enforcement efforts regarding director overlaps; and 3) challenges to MFN pricing. 

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