Abstract
The Federal Trade Commission (FTC) recently adopted a new regulation that prohibits non-compete clauses for employees (Non-Compete Rule). Simultaneously, the FTC allowed the inevitable disclosure doctrine to continue in existence, even though such doctrine is tantamount to a non-compete clause. Under the inevitable disclosure doctrine, an employer posits that an employee will be unable to abide by her/his confidentiality obligations, and therefore unable to resist use and disclosure of proprietary information at an alternative employer. As a result, prescient, mind-reading judges portend future conduct under the inevitable disclosure doctrine and can issue an order banning or restricting future employment, thereby creating a de-facto non-compete covenant. Regardless of whether the FTC Non-Compete Rule is upheld or replaced by successor legislation, the inevitable disclosure doctrine remains an ugly, unpalatable, and unfair method of competition by employers. The inevitable disclosure doctrine allows employers to bait and poison employees with purportedly irresistible information, resulting in clairvoyant judges imposing non-compete restrictions upon unwitting, innocent employees. It is time for the inevitable disclosure doctrine to mysteriously evaporate back into the same thin air from whence it first appeared.
Recommended Citation
Bradford P. Anderson,
NON-COMPETE CLAUSES MYSTERIOUSLY APPEARING OUT OF THIN AIR: THE CATASTROPHIC FLAWS OF INEVITABLE DISCLOSURE DOCTRINE IN THE NEW FTC NON-COMPETE RULE AND BEYOND,
49
S. Ill. U. L.J.
55
(2024).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol49/iss1/5