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Authors

Nadia Brenden

Document Type

Comment

Abstract

To better understand the implications of the FTC’s sweeping proposal and the need for a state-by-state approach, the following sections dive into the legal, historical, and comparative foundations of restrictive covenants, trace their evolution across jurisdictions, and explain why states—not federal agencies—are best positioned to strike the right balance. Part II provides an overview of legal doctrines governing the transmission of proprietary information, a history of the early applications of employment contracts, and a comparative analysis of international noncompete standards. Part III describes how different jurisdictions apply trade secret, contract, and employment law to protect business interests through enforceable agreements. Part IV outlines the criteria courts use to determine whether an employer interest is protectable. Part V examines the differing approaches states take when enforcing employment contracts. Part VI critiques the Federal Trade Commission’s (FTC) proposed nationwide ban on NCAs (and certain NDAs), arguing that it oversteps federal authority and threatens to displace state-specific frameworks. Finally, Part VII proposes NDAs as a more precise and enforceable alternative to NCAs–– one that balances innovation and mobility without the overreach of a one-size-fits-all federal ban.

First Page

32

Last Page

72

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