North America

Comments to the FTC’s Proposed Noncompete Ban Due March 20, 2023 – and the Comment Period May Be Extended Another 60 Days

As previously reported, the Federal Trade Commission (FTC) proposed a rule on January 5, 2023, that would ban noncompetes nationwide. There are serious questions about the FTC’s authority to promulgate such a rule and many practical reasons why such a sweeping approach is unwarranted—in particular at the federal level. The period for submitting formal comments to the proposed rule lasts 60 days following publication of the proposed rule in the Federal Register. The FTC did not file the proposed rule with the Federal Register until January 18, 2023, and it will not be published until January 19, 2023, meaning that the comment period will end on March 20, 2023—not March 10, 2023, as the FTC initially announced. We are told that there will be a formal request to extend the comment period for an additional 60 days, or until May 19, 2023, and that the FTC is likely to grant the request.

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FTC Proposes Aggressive Rule That Would Decimate Employment Non-Competes

The federal government has proposed a rule to ban non-compete agreements between nearly all employers and all workers. The Federal Trade Commission (FTC) believes this rule will increase wages by almost $300 billion annually while helping 30 million Americans expand their career opportunities. 

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Spilling Secrets Podcast: What to Do When a Star Employee Decamps to a Competitor – Employment Law This Week

As featured in #WorkforceWednesday:  This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:

The holidays are over, and year-end bonuses are being paid, making January and the first quarter a common time for employees to jump ship to work for a competitor.

Our all-star panel of attorneys – Pete SteinmeyerKate RigbyMillie Warner, and Erik Weibust – discuss what an employer should do in this situation.

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The Anti-Money Laundering Act of 2020 Gets a “Glow Up”: Congress Strengthens Enforcement by Enhancing Financial Incentives and Clarifying Whistleblower Eligibility

On December 29, 2022, President Biden signed the Anti-Money Laundering Whistleblower Improvement Act (“the Act”) into law, overhauling the Anti-Money Laundering Act of 2020 (“AMLA”).  When initially passed, the AMLA met with extensive criticism by plaintiff-side whistleblower attorneys for failing to set a defined guaranteed rate for whistleblower awards, with the potential awards ranging from zero percent to thirty percent for identifying wrongful conduct in the anti-money laundering area.  In response to this criticism and to correct other “shortcomings,” Congress amended the law in 2022 through its omnibus budget to expand enforcement measures within the United States and beyond its borders by clarifying who can be a whistleblower and the rewards for successfully raising compliance complaints.  Below, we delve into these changes and their significance for employers.  Essentially, these changes will increase employers’ potential liability for retaliation claims by emboldening newly eligible whistleblowers and their lawyers to raise non-compliance complaints.

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CSA Staff Review of Non-GAAP and Other Financial Measures Disclosure

On November 3, 2022, the Canadian Securities Administrators (CSA) published CSA Staff Notice 51-364 (the “Report“) to summarize the results of continuous disclosure reviews conducted by CSA staff over two years ending March 31, 2022. The Report appended a summary resulting from the CSA’s review of approximately 85 issuers to assess compliance with certain aspects of National Instrument 52-112 Non-GAAP and Other Financial Measures Disclosure (“NI 52-112“), replacing the guidance in CSA Staff Notice 52-306 (Revised) — Non-GAAP Financial Measures.

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TSX PROPOSED AMENDMENTS: PROVIDING CLARITY ON BONA FIDE PUBLIC OFFERINGS

I.  Introduction

On December 1, 2022, the Toronto Stock Exchange (the “TSX“) sought out comments from the public for its proposed amendments to Section 606 — Prospectus Offerings (the “Proposed Amendments“) of the TSX Company Manual (the “Manual“). The Proposed Amendments seek to reduce the burdens that issuers and their agents face when raising capital by way of a prospectus offering by providing clarity, predictability, and greater transparency of TSX policies. The TSX expects the Proposed Amendments to come into force during the first quarter of 2023, following public notice and approval by the Ontario Securities Commission. The TSX is soliciting comments from the public on the Proposed Amendments until January 31, 2023.

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Law and leadership: Andrew Penhale’s Experience

Our CEO, Andrew Penhale, talks about his experience as a team leader as well as his academic and professional background.

This episode is part of a series of podcasts put together by the Université de Sherbrooke. Andrew tells his story in an interview with Josée Perreault. 

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FTC Proposes to Sweep Away All Noncompetes in Unauthorized Federal Power Grab

Our colleagues Erik W. Weibust, Peter A. Steinmeyerand Stuart M. Gerson co-authored an article in the Legal Backgrounder, published by the Washington Legal Foundation, titled “After 200+ Years Under State Law, FTC Proposes to Sweep Away All Noncompetes in Unauthorized Federal Power Grab.”

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An “Owner Occupant” Home Insurance Requires Actual Occupancy by the Owner

On December 20, 2022, in Dang c. Industrielle-Alliance, assurance auto et habitation inc., 2022 QCCA 1739, the Court of Appeal maintained the Superior Court judgment which was the topic of our bulletin of June 17, 2021 (Homeowner Insurance Policy: The Importance of Living in the Insured Dwelling).

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New Jersey Employers Face New WARN Act Burdens Soon

The wait is over. On January 10, 2023, New Jersey Governor Phil Murphy signed bills S3162/A4768 into law thereby making April 10, 2023 the effective date for the sweeping amendments to the state’s WARN Act  (“NJ WARN Act”), which had been placed on hold for three years due to the pandemic.

With the pause lifted, the new, and some would say Draconian, provisions will kick-in in less than three months.

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