Amrith Kumar put up a blog post last week that presented some thoughtful arguments in favor of non-competes and also spurred a great thread of comments that are well worth reading. I for one am very much looking forward to the Non-Compete Forum being held on July 22nd. Over the past few weeks there has been a gaggle of great conversation online and offline about the state of the state as it concerns these non-competes. The Boston Globe today published an op-ed on the issue. Dialogue is good!
For the world in which I live (early-stage internet / software / mobile startups) I believe that non-competes are relatively pointless, and a net-drain on the overall MA ecosystem. However the arguments for and against broadly changing or striking the laws are not cut-and-dry.
The idealists-against-non-competes believe we have enough data to declare MA non-competes valueless and growth-limiting. That’s a non-trivial leap to take based on examining insanely complicated ecosystems in jurisdictions other than MA. It might be true, but if the analyses are wrong, it could be a gargantuan mea culpa.
The idealists-in-favor-of-non-competes believe that things are fine, and the employers and court systems will behave rationally. This is a stretch, since extracting the ultimate ‘rational’ answer to a non-compete contract / argument will involve litigation, thereby maiming the entire process at the outset.
The pragmatists seem to be arguing that non-competes, as currently crafted and legislated in MA, are just too broad, and we just need to put in place better clarification re: who they apply to, for what reasons, for what timeframes, and in which industries. Amrith’s post and the ensuing comment discussion riff on this nicely. However, even a cursory pass through the proposed House No. 1799 should make your eyes roll. Nobody said pragmatism was easy😉 .
If you care about this issue (and you know you should), please consider attending the forum being held on July 22nd so we can all get better educated and get this problem fixed!