Lisa Bertini quoted in a new article on VA Lawyers Weekly

The title of the Biden administration’s July 9 executive order on “Promoting Competition in the American Economy” is unlikely to set off alarm bells. After all, “more competition” conjures images of new jobs, better wages and prices for consumers, and more opportunities to launch and establish a business. Who could be opposed to that?

However, beneath that innocuous title are 72 initiatives and directives involving more than a dozen federal agencies. As of now, there are not a lot of specifics, and only time will tell what form the revised regulations and other policy changes the Biden administration is urging will take, attorneys told Lawyers Weekly.

But that does not mean the direction things are heading cannot be discerned. Given that, lawyers have begun to think about what the forthcoming changes may mean for their clients and are developing plans to respond.

One aspect of the executive order that has already gotten the attention of the legal community: two brief mentions of noncompete clauses “and other clauses or agreements that may unfairly limit worker mobility.”

The order specifically encourages the chair of the Federal Trade Commission to consider working with the rest of the commission to exercise the FTC’s statutory rulemaking authority to curtail the “unfair” use of noncompete and other objectionable clauses or agreements.

Even within the short sentences, there are several qualifiers and caveats, namely that FTC action is being “encouraged,” not mandated, and the executive order is seemingly concerned with only “unfair” noncompetes, as distinguished from “all” noncompetes.

“I don’t think the president’s words alone will do anything until a Virginia court boldly use the language employed as part of a public policy argument to rule that these types of noncompetes are unenforceable and against public policy,”

Read the full article.