Campus/Virtual - Journal of Science and Technology Fall 2024 Symposium
Albany Law Journal of Science and Technology, Vol. 35 presents
The Proposed FTC Ban on Non-Compete Agreements: The Impact on the Big Tech Industry and Pending Litigation
Wednesday, November 13, 2024
3:00 - 5:00 p.m.
Reception to follow
Albany Law School
Dean Alexander Moot Courtroom
80 New Scotland Ave, Albany, NY 12208
(Also available via Zoom)
Moderator
Alyssa R. Rodriguez, Esq. ’18
Assistant General Counsel at New York Life Insurance Company
Keynote Speaker
Prof. Orly Lobel
Author; Warren Distinguished Professor of Law and Director, Center for Employment and Labor Policy at University of San Diego, School of Law
Panelists
Prof. Michael J. Hutter
Professor of Law, Albany Law School
Kristin Foust, Esq. ’07
Principal Attorney, Hinman Straub, P.C.
Sarah Tishler, Esq.
Senior Counsel, Beck Reed Riden, LLP
The recent decision by the Federal Trade Commission (FTC) to ban non-compete agreements has implications for the labor and employment law field, competition, and innovation, and has heightened implications for the Big Tech industry as a fast-paced and competitive field. A total non-compete ban would have unprecedented impacts on the nation’s job market. The FTC rule was followed by developments on non-compete and NDA regulations. Specifically, non-compete agreements can have increased harm on individual employees and their salaries and mobility.
The FTC’s announcement of the rule was met with legal challenges in courts across the country, and ultimately resulted in a nationwide injunction by the 5th Circuit barring the non-compete ban from going into effect. Despite this development, there continues to be both federal and state trends regarding these agreements. What on-going litigation trends are we likely to see in this area?
This symposium will examine the individual employee rights perspective and the impact on the start-up industry. Speakers will also discuss trade secret law, trade secret misappropriation, and practical suggestions for organizations to protect their trade secrets. How can organizations protect their trade secrets in a world where the FTC rule goes into effect and non-competes are banned? How does this topic relate to competition policies and innovation? Where is the line between enforceable and unenforceable mobility requirements as they pertain to innovation? How could this affect entrepreneurs and the future of start-up companies? What will happen if the rule does or does not stand in NY?
About our Moderator, Keynote, and Panelists
Alyssa R. Rodriguez, Esq. ’18
Alyssa Rodriguez is Assistant General Counsel at New York Life Insurance Company. Rodriguez’s role at NYL includes advising on Canadian and EU regulations and guidelines regarding climate-related financial disclosures and reporting responses; preparing SEC filings; reviewing fund investor quarterly reports; advising on investment options, registered and exempt fund transactions, and separate account transactions; drafting fund participation agreements and amendments; conducting operational due diligence examinations; and filing consents for electronic delivery of SEC required disclosure documents and insurance documents. Rodriguez serves as Co-Head of the OGC Engagement Committee and OGC representative for NYL's Diversity Committee's Core Team. Prior to joining New York Life Insurance Company, Ms. Rodriguez worked as an Associate Attorney at Martin Clearwater & Bell LLP, a Staff Attorney at the Sanctuary for Families, and an Associate Attorney at Rawle & Henderson LLP.
During her time at Albany Law School, Rodriguez was the Executive Director of the Anthony V. Cardona ’70 Moot Court Program, an Associate Editor on Albany Law Review, the Vice President of the Student Bar Association, an Executive Board Member of the Pro Bono Society, and she participated in both the Moot Court Constitutional Law Appellate and Civil Trial Advocacy Teams. Ms. Rodriguez received the Capital District Trial Lawyers Association Prize, was awarded to the National Order of the Barristers, and graduated with Pro Bono Honors. Ms. Rodriguez also received the Albany Law School Excellence in Student Scholarship, the Albany Law School Platinum Public Service Award, and placed third in the Bruce M. Stargett Legal Ethics Writing Competition.
Professor Orly Lobel
Professor Orly Lobel is an award-winning author of numerous best-selling books and articles, a Warren Distinguished Professor of Law, and Founding Director of the Center for Employment and Labor Policy at University of San Diego. Professor Lobel’s areas of legal expertise include Intellectual Property, Employment and Labor Law, Tech Policy, Artificial Intelligence & the Law, Innovation and Human Capital, and Equality & Discrimination. She has recently been named as one of the most cited legal scholars in law and technology and employment law and is one of the most cited younger legal scholars in the United States. Professor Lobel served on former President Barack Obama’s policy team on innovation and labor market competition, and has advised federal and state agencies, including the Federal Trade Commission on tech policy. In 2023, Professor Lobel keynoted the United Nations AI for Good Summit in Geneva. She has been recognized by her students as a Woman of Impact and a Woman of Valor. Professor Lobel has regularly been quoted in the New York Times, Wall Street Journal, Time Magazine, The New Yorker, Forbes, and the Harvard Business Review.
Professor Lobel graduated from Tel-Aviv University and Harvard Law School, clerked on the Israeli Supreme Court, and is a member of the American Law Institute. Professor Lobel has published extensive scholarly works, including several publications on non-compete agreements and their potential ban.
Professor Michael Hutter
Professor Hutter's teaching focuses on litigation courses, including evidence, New York practice, federal jurisdiction and trade regulation, antitrust and business torts, conflict of laws, and trade regulation. He is a senior member of the Albany Law School faculty, having joined the faculty in 1976.
Professor Hutter is a recognized expert in covenants-not-to-competition and trade secret matters. A past Chair of the ABA Litigation Section Business Torts Litigation Committee and the inaugural Editor-in-Chief of the ABA’s Model Jury Charges in Business Torts Cases in New York evidence, he is a frequent lecturer on trade regulation topics and has authored several articles on those topics.
Professor Hutter is an elected member of the American Law Institute and a Fellow of the American Bar Association and New York State Bar Association. In 1999, Professor Hutter was recommended by the State Commission on Judicial Nomination to Governor Pataki for the position of Associate Judge, New York State Court of Appeals. He is a past president of the Albany County Bar Association.
Professor Hutter graduated from Brown University and Boston College Law School, where he was elected to the Order of the Coif. After graduation, Professor Hutter served as law clerk to Judge Matthew J. Jasen, an Associate Judge of the New York Court of Appeals. After his clerkship, he was a litigation associate with the Hodgson Russ law firm in Buffalo, New York. He currently consults on trade regulation matters with law firms and corporations.
Kristin Foust, Esq.
Kristin Foust is a principal attorney at Hinman Straub, P.C., in the Labor and Employment Department. Ms. Foust represents clients in federal and state courts on claims of workplace discrimination, retaliation, and wage and hour violations, and before the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights (NYSDHR) on matters of discrimination. Foust assists clients in complying with state and federal wage and hour, labor, workplace safety, and anti-discrimination laws.
Foust also regularly assists clients in drafting and reviewing employment, independent contractor, and non-compete agreements to ensure compliance with the law and prevent future challenges to enforceability. Additionally, she assists clients on the employee side in negotiating termination of employment, including negotiation of severance and review of any related agreements.
Prior to joining the firm, Foust worked for over a decade as an Assistant District Attorney in the Manhattan District Attorney’s Office and the Saratoga County District Attorney’s Office.
Sarah Tishler, Esq.
Sarah Tishler is Senior Counsel at Beck Reed Riden LLP, a nationally recognized boutique litigation firm based in Boston, Massachusetts. Ms. Tishler’s practice is concentrated on trade secret and restrictive covenant advising and litigation, employee mobility, and commercial litigation. Ms. Tishler has won successful outcomes for clients on both sides of these disputes in all stages of litigation, including the preliminary injunction stage, jury trials, and mediation. Ms. Tishler has also counseled clients on the identification and protection of trade secrets, and the enforceability of non-competes and other restrictive covenants. Ms. Tishler was named by the Legal 500 as a Rising Star for 2023 in the area of Trade Secrets.
Ms. Tishler is the author of several articles that discuss the interaction between contractual and statutory choice of law and forum selection clauses, in the context of restrictive covenant agreements and legislation. Ms. Tishler was also awarded the Pro Bono Star Award in 2022 by Human Rights First for her work in successfully obtaining permanent residency and temporary protected status for a Haitian asylum-seeker and her parents, respectively.