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VIEWPOINT: District Court Approves FTC Non-Compete Ban
A Growing Divide That May Sow Confusion On July 23, 2024, the United States District Court for the Eastern District of Pennsylvania (Hon. Kelley B. Hodge, U.S.D.J.) issued a memorandum opinion and order in the matter of ATS Tree Services, LLC v. Federal Trade Commission, 2024 WL 3511630, 24-1743, denying plaintiff’s motion seeking a preliminary […]
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On July 23, 2024, the United States District Court for the Eastern District of Pennsylvania (Hon. Kelley B. Hodge, U.S.D.J.) issued a memorandum opinion and order in the matter of ATS Tree Services, LLC v. Federal Trade Commission, 2024 WL 3511630, 24-1743, denying plaintiff’s motion seeking a preliminary injunction enjoining enforcement of the FTC’s Non-Compete Rule.
Following a detailed history of the FTC Act and a brief discussion of the FTC’s Non-Compete Rule, the court first held that the plaintiff ATS Tree Services, LLC failed to meet its burden of demonstrating irreparable harm, inasmuch as the costs expended in complying with federal regulations cannot constitute sufficient harm to support a preliminary injunction and the speculative risk that employees may leave the company without noncompete agreements was unsupported.
More importantly, the district court held that even if the plaintiff could establish irreparable harm, the plaintiff could not establish they were likely to succeed on the merits of the case. Specifically, the district court rejected the plaintiff’s contention that the FTC was authorized to make procedural rules but not substantive rules under the FTC Act. In doing so, the District Court for the Eastern District of Pennsylvania expressly held that the FTC Act authorized the FTC to make substantive rules impacting business. In other words, the FTC was not required to only be reactive but could be proactive as well. Moreover, the district court held that the FTC’s Non-Compete Rule clearly fell within the FTC’s directive to prevent “unfair methods of competition.” Finally, the district court rejected the plaintiff’s arguments that the FTC was precluded from regulating noncompete agreements because they are “traditionally regulated by state law.”
In sum, the District Court for the Eastern District of Pennsylvania held that the FTC was authorized to issue the Non-Compete Rule and that the FTC’s promulgation of the Non-Compete Rule was constitutional.
The district court’s order is clearly at odds with the July 3, 2024 order of the Northern District of Texas in Ryan LLC v. Federal Trade Commission, 2024 WL 3297524, 24-cv-986, discussed in a prior article (https://www.bsk.com/news-events-videos/district-court-enjoins-ftc-non-compete-ban-but-with-a-catch), which held that the FTC overstepped its authority in issuing the Non-Compete Rule and enjoined enforcement of the Non-Compete Rule as against the parties to that lawsuit. This emerging split may continue through the appellate courts, requiring resolution in the United States Supreme Court.
However, as it stands, the current effective date of the FTC non-compete ban is Sept. 4, 2024. Given the future of the FTC’s Non-Compete Rule remains up in the air, businesses need to take appropriate steps to prepare for the possibility that the FTC Non-Compete Rule goes into effect. Such steps should include identifying any “workers,” both current and former, who may be subject to non-competes and preparing, but not sending, the notices required by the FTC Non-Compete Rule. We will continue to closely monitor the situation and provide updates.
Bradley A. Hoppe is a member (partner) in the Buffalo office of Syracuse–based law firm Bond, Schoeneck & King PLLC. He is a litigation attorney who handles a wide range of business, commercial, and municipal matters at the trial and appellate levels in both state and federal court. Contact Hoppe at bhoppe@bsk.com. Kevin G. Cope is an associate attorney in Bond’s Buffalo office. He is a litigation attorney who assists a wide range of clients in successfully resolving pending matters, or, when possible, to avoid litigation through implementing measures to mitigate or avoid potential exposure. Contact Cope at kcope@bsk.com. This article is drawn and edited from the law firm’s website.
OPINION: Another 352K unemployed in July as Biden-Harris economy teeters
The U.S. unemployment rate once again ticked up in July to 4.3 percent [from 4.1 percent in June] as another 352,000 Americans said they were unemployed, according to the latest data from the U.S. Bureau of Labor Statistics. [U.S. stock markets fell sharply on Aug. 2, the day of the July jobs report (https://www.bls.gov/news.release/archives/empsit_08022024.htm), which
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The U.S. unemployment rate once again ticked up in July to 4.3 percent [from 4.1 percent in June] as another 352,000 Americans said they were unemployed, according to the latest data from the U.S. Bureau of Labor Statistics.
[U.S. stock markets fell sharply on Aug. 2, the day of the July jobs report (https://www.bls.gov/news.release/archives/empsit_08022024.htm), which showed that the economy added 114,000 nonfarm payroll jobs, below the approximately 180,000 that were expected by economists.]
Overall, 1.47 million more Americans say they’re unemployed since December 2022, with the number of unemployed now up to 7.16 million, the highest since October 2021 following the COVID recession.
That’s surely a bad sign for Vice President Kamala Harris, the new presumptive Democratic Party nominee for president, who now inherits the Biden economy she has overseen by his side.
At 4.3 percent, the unemployment rate is now higher than the Federal Reserve and the White House Office of Management and Budget’s projections for 2024 — with the Federal Reserve having previously projected unemployment to continue rising to 4.1 percent in 2024, and the White House having said unemployment wouldn’t get above 4 percent this year.
They were both wrong. Instead, the unemployment rate has risen from its April 2023 low of 3.4 percent to 4.3 percent now.
The Biden administration clearly underestimated how much unemployment would occur as a result of the post-COVID inflation overheating the U.S. economy — and much of the future unemployment may yet be on the horizon.
According to the U.S. Department of Labor, as of July 20, unadjusted unemployment continuing claims are now up to 1.94 million, compared to 1.82 million a year ago. That’s not good.
Another key indicator to watch on that front remains the spread between 10-year and 2-year treasuries. This spread tends to invert prior to recessions, and then un-inverts as the jobless rate rises.
Well, right on schedule, the 10-year-2-year spread is at -0.08 percent as of this writing [on Aug. 2] and may be about to un-invert itself for the first time since 2022 and is well above its -1.07 percent and -1.08 percent readings in March and July 2023, respectively.
This is what usually happens after inflation peaks, households max out their credit cards, and spending slows down. Eventually the layoffs kick in.
Inflation peaked at 9.1 percent in June 2022 and the growth of consumer credit peaked at 9.9 percent annually about the same time in April 2022. But by May 2024, consumer-credit growth has slowed down significantly to just 2 percent. And inflation has similarly slowed down to 3 percent over the past 12 months in June, although prices are still more than 21 percent higher than they were in January 2021.
Whether that makes Harris, who has seen a recent bump in the polls as Democrats have consolidated around her candidacy, a sacrificial lamb remains to be seen. Thet the economy remains strong if unemployment keeps rising as usually happens during recessions? If the Fed and the White House could not properly evaluate the lingering impacts of inflation and their aftereffects on the economy including labor markets, what hope is there that Harris will?
Harris supported all the spending and borrowing that fueled the inflation as the M2 money supply grew by almost $7 trillion during and after COVID.
She now owns the economy, owns the inflation, and owns any present and future unemployment that ensues, with nearly 1.5 million more unemployed since peak employment.
Biden and Harris’ best story to tell voters in 2024 is rapidly coming to an end — and so too might Harris’ hopes of getting elected in November. Stay tuned.
Robert Romano is the VP of public policy at Americans for Limited Government Foundation, the research arm of Americans for Limited Government, a libertarian political advocacy group. The organization conducts policy research and publishes reports with the goal of reducing the size of the government.
OPINION: Let’s Not Forget What’s Really Vital in a Representative Democracy
If you’re at all like me, it probably feels like we have already been through at least three different presidential-election years so far this year. And given the pace of events, it’s a good bet that between now and November, there is more to come. The presidential contest has so thoroughly dominated our attention —
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If you’re at all like me, it probably feels like we have already been through at least three different presidential-election years so far this year. And given the pace of events, it’s a good bet that between now and November, there is more to come. The presidential contest has so thoroughly dominated our attention — not to mention news cycle after news cycle — that even the Senate and House races have pretty much disappeared from view. In this environment, the central role that ordinary Americans play — except as poll respondents — isn’t even an afterthought.
Which is a little troubling, given how critical effective citizenship remains to our representative democracy. Each of us has a responsibility to do what we can to help the country grapple with its challenges and problems — to roll up our sleeves when things are in doubt and make a difference. Our strength and vitality as a country rest on the involvement of millions of people in their neighborhoods and communities, in interest groups and civic organizations, in groups agitating for change, and in groups defending the status quo. As one person, you can’t solve all the problems of the world — but you can try to make your corner of the world better. That’s what our system calls on us to do.
So just what does this take? I believe that being an effective citizen requires a few skills and qualities.
First and maybe most important, it takes a belief that change is possible, and that the United States can make progress over time thanks to the efforts both of ordinary people and of political leaders. I think back to a speech that Barack Obama gave as president in which he noted that by almost every measure, the country had moved forward over the decades: less poverty, less crime, more Americans with college degrees, more women in the workforce, healthier cities, a more diverse economy… We’ve got no shortage of work to do, but on the whole, I’ll take where most Americans stand in their lives today over what things looked like even 40 years ago. Our system is working better for more people than it did then.
The people who helped make this happen understood two things: that progress was possible and that it required their efforts. I think it’s fair to say that those who were most effective made a difference because they had the skills to do so. Yes, things like organizing ability matter, but I’m talking more about fundamental abilities that are within reach for all of us, and that we should all share if we’re to solve problems in a society that’s filled with people who have different beliefs, perspectives, and experiences. Things like knowing how to work together with all kinds of people, being able to look for common ground, being forthright about our goals, knowing how to forge connections to others who can help advance a cause, building consensus, and communicating ideas effectively.
I used the word “skills” above, but in the end, good citizenship is as much about temperament as it is about ability. Mutual respect, tolerance, empathy, civility, humility, honesty, resolve — these are the homespun virtues our nation requires of its citizens, not because they’re nice to see, but because in a vibrant and diverse society they’re what it takes to make progress and honor the democracy we want to preserve.
I frequently hear from people who are exasperated by the obstacles they have to overcome. Their fellow citizens are uninformed, or politicians are too self-interested, or the bureaucracy is impenetrable, or officials are more interested in protecting turf than improving others’ lives. All of those could be problems, but here’s the thing: There will always be problems. You just have to plug away at overcoming them.
The key thing to remember is this: representative democracy is not all about the presidency. We — you, me, our fellow citizens — are responsible for the future of both our neighborhoods and our nation as a whole. That’s not going to get a lot of attention this election year, but whatever happens in November, it’s going to be as true afterward as it’s been throughout our history.
Lee Hamilton, 93, is a senior advisor for the Indiana University (IU) Center on Representative Government, distinguished scholar at the IU Hamilton Lugar School of Global and International Studies, and professor of practice at the IU O’Neill School of Public and Environmental Affairs. Hamilton, a Democrat, was a member of the U.S. House of Representatives for 34 years (1965-1999), representing a district in south-central Indiana.

Slocum-Dickson announces new lab location
NEW HARTFORD, N.Y. — Slocum-Dickson Medical Group (SDMG) will open a modernized laboratory in a new location on the Burrstone Road campus on Monday, Aug. 12, the health-care organization announced. The lab will be located on the lower level just beyond the CT department, providing patients with a more modern and spacious environment. It also
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NEW HARTFORD, N.Y. — Slocum-Dickson Medical Group (SDMG) will open a modernized laboratory in a new location on the Burrstone Road campus on Monday, Aug. 12, the health-care organization announced.
The lab will be located on the lower level just beyond the CT department, providing patients with a more modern and spacious environment. It also allows for a dedicated infant draw station, which enhances comfort and privacy for infants and their families.
Additionally, the lab will be accessible through an exterior entrance on the back of the building.
The laboratory provides a full range of pathology clinical services and a range of specialized tests to support the needs of primary and specialty care physicians.
The hours are Monday through Friday from 7:30 a.m. to 8 p.m. and Saturday and Sunday from 9 a.m. to 6 p.m. Patients may park in the patient parking area located behind the building.
Slocum-Dickson Medical Group employs more than 50 physicians and several hundred staff members in a multi-specialty group practice.

Ask Rusty: About Social Security’s annual COLA
Dear Rusty: I’ve been reading a lot lately about speculation on what next year’s Social Security benefit increase will be, and it seems like most of the experts are suggesting a range of 2.5 percent to 3 percent. My neighbor says don’t worry about it, because there will always be some level of increase come
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Dear Rusty: I’ve been reading a lot lately about speculation on what next year’s Social Security benefit increase will be, and it seems like most of the experts are suggesting a range of 2.5 percent to 3 percent. My neighbor says don’t worry about it, because there will always be some level of increase come January. It’s guaranteed, right?
Signed: Retired But Questioning
Dear Retired But Questioning: You have brought up a common belief about the annual Social Security cost-of-living-adjustment (COLA), one that we hear often. Let’s start with some background. Each year’s COLA results from comparing the third-quarter average Consumer Price Index (CPI-W) each year to the same average from the preceding year. The result of dividing the current year’s average by the previous year’s average produces the COLA for the following year. For 2024’s adjustment, the 2023 third-quarter average was 301.2 and the comparable figure for 2022 was 291.9, producing the 3.2 percent benefit addition.
It’s not always the case that the year-to-year CPI calculation produces a positive result, as was the case three times so far this century. As recently as 2016, for example, the 2015 third-quarter average was 233.3 and the comparable figure for 2014 was 234.2, producing a negative change. Fortunately for beneficiaries, Social Security law prohibits a negative COLA, so the negative result was ruled out and the COLA for 2016 was zero.
So, the rumor that there will always be a benefit increase in January is untrue, although having only three zero COLA years since the start of automated adjustments in 1974 leads folks to assume there will always be a boost in the new year. The size of the adjustment fluctuates with economic cycles and has ranged from a high of 14.3 percent in 1980 to 0.3 percent in 2017 (excluding, of course, the zero years). Incidentally, the historical average since automatic COLAs began is 3.8 percent, so the 2024 adjustment of 3.2 percent isn’t that far from the average.
Social Security’s rules are myriad and often confusing, but no question is too simple to be asked. The AMAC Foundation’s Social Security Advisory Service is available, at no charge, to answer all your Social Security questions, via email at SSAdvisor@amacfoundation.org, or you can call (888) 750-2622.
Russell Gloor is a national Social Security advisor at the AMAC Foundation, the nonprofit arm of the Association of Mature American Citizens (AMAC). The 2.4-million-member AMAC says it is a senior advocacy organization. Send your questions to: ssadvisor@amacfoundation.org.
Author’s note: This article is intended for information purposes only and does not represent legal or financial guidance. It presents the opinions and interpretations of the AMAC Foundation’s staff, trained, and accredited by the National Social Security Association (NSSA). The NSSA and the AMAC Foundation and its staff are not affiliated with or endorsed by the Social Security Administration or any other governmental entity.

AAA Western and Central New York selects new president and CEO
AMHERST, N.Y. — The board of directors of AAA Western and Central New York has chosen the organization’s next president and CEO. After a national

Working Another Job While on FMLA Leave is Not Necessarily Misconduct
Imagine this. You have an employee who is on leave pursuant to the Family and Medical Leave Act (FMLA) and you discover that the employee

SYRACUSE, N.Y. — Drivers who use Interstate 690 (I-690) eastbound in the city of Syracuse will soon see a lane reduction connected to a project

Onondaga County accepting grant applications for its hotel initiative
SYRACUSE, N.Y. — Onondaga County is now accepting applications for the hotel initiative that Onondaga County Executive Ryan McMahon announced back on June 4. The Onondaga County Hotel Initiative will be seeded with $4 million and will award grants ranging from $50,000 to $750,000 to developers. The grants are meant to help in closing funding
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SYRACUSE, N.Y. — Onondaga County is now accepting applications for the hotel initiative that Onondaga County Executive Ryan McMahon announced back on June 4.
The Onondaga County Hotel Initiative will be seeded with $4 million and will award grants ranging from $50,000 to $750,000 to developers. The grants are meant to help in closing funding gaps in new hotel construction and/or give existing hotels incentive to add rooms to their facilities in Onondaga County.
The county will establish criteria to grade each proposal including, but not limited to, size of hotel, how quickly it will come online, and jobs created, per the announcement.
Onondaga County Community Development will operate the program and will award funding grants “on a rolling basis.”
In the Tuesday announcement, McMahon’s office said, “Tourism and convention business have served as a key driver of revenue and growth with respect to the local economy. Key to that success has been an abundance of diverse and quality hotel rooms and meeting space. In recent years, we have seen a significant number of hotels come offline and subsequently jeopardize our ability to attract new convention business or accommodate visitors and tourists to the area.”
It went on to say, “Further compounding the issue are the massive investments being made by Micron [Technology, Inc. (NASDAQ: MU)] at the White Pine Commerce Park as well as the numerous supply-chain companies expected to follow suit.”
More information can be found at this website. Or, you can contact Marty Skahen, director of community development, at martinskahen@ongov.net or (315) 435-3558.

Community Bank names CNY market regional president
DeWITT, N.Y. — Community Bank N.A. announced it has promoted Lindsay Weichert to the role of regional president of the bank’s Central New York market in Syracuse. In her new position, Weichert is responsible for leading business development and community-engagement activities while ensuring effective communication across all bank and non-bank lines of business in the
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DeWITT, N.Y. — Community Bank N.A. announced it has promoted Lindsay Weichert to the role of regional president of the bank’s Central New York market in Syracuse.
In her new position, Weichert is responsible for leading business development and community-engagement activities while ensuring effective communication across all bank and non-bank lines of business in the region.
“Lindsay’s leadership and wealth of experience in commercial real estate finance have been a key factor in our growth and strong reputation across our Central New York region,” Chief Banking Officer Jeffrey Levy said in a news release. “As Community Bank continues to grow in size and geography, remaining close to our customers and communities is more important than ever. I am confident that Lindsay’s effective leadership, passion for community service, and her steadfast commitment to our customers will further support this mission, and I look forward to her continued success in this new role.”
Weichert, who has more than two decades of banking industry experience, joined Community Bank in 2022 as senior VP, commercial banking group manager, where she oversaw commercial-banking operations for the region. She has completed Community Financial System Inc.’s inaugural Leadership Council program.
Prior to joining Community Bank, Weichert worked for M&T Bank and Fitch Ratings, where she specialized in commercial real-estate lending.
Outside of work, Weichert is active in the community and volunteers with several organizations. She is treasurer of the Downtown Syracuse Foundation, a board member of Syracuse City Ballet and the United Way of Central New York, and a member of several local economic-development task forces and working groups.
Weichert holds a master’s degree in real estate with a concentration in finance and investments from New York University and a bachelor’s degree in multi-language, with minors in economics and mathematics, from St. Lawrence University.
Community Bank N.A. is the banking subsidiary of Community Financial System, Inc. (NYSE: CBU), a financial-services company based in DeWitt. Community Bank has 200 branches across New York, Pennsylvania, Vermont, and Massachusetts.
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