Columns

COMMENTARY: Post-World War II era set the stage for societal change

February 23 ,2024

This is the fourth commentary in a series examining two periods in our history that Donald Trump claims were “great” compared to the present era: 1900 to 1910, and the post-World War II era through the 1950s.
The decade 1900-10 was the subject of preceding commentaries. This commentary and the next will discuss the post-World War II period.
The focus will be on whether that era should serve as a model for MAGA Republicans to “Make America Great Again.”
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By Samuel Damren

This is the fourth commentary in a series examining two periods in our history that Donald Trump claims were “great” compared to the present era: 1900 to 1910, and the post-World War II era through the 1950s.

The decade 1900-10 was the subject of preceding commentaries. This commentary and the next will discuss the post-World War II period.

The focus will be on whether that era should serve as a model for MAGA Republicans to “Make America Great Again.”

Like the economy today and from 1900-10, it was “boom times” in America during the post-World War II period. However, not to dampen the congratulatory mood, we should recognize that America enjoyed a competitive edge on a scale that no modern nation has ever before enjoyed.  

Starting in late 1942, as part of the overall war effort, American and British planes spent nearly three years bombing our industrial manufacturing competition in Nazi-controlled Europe and later in Japanese-controlled Asia to rubble.

As a consequence, during the decade and a half following the war, American industry operated without competitive rivals. Given those conditions, it was little wonder that the economy flourished.

There are other parallels between today’s economy and the economy of post- World War II America: inflation caused by pent-up demand.

Economists were not surprised by the recent spike in inflation following the cessation of COVID restrictions and the opening of markets in 2021. The same episodic spike occurred after World War II and the Korean War when markets were freed from wartime priorities and controls.

Inflation spiked to 20 percent in 1947 and to 10 percent in 1952. Both quickly dissipated just as the annual inflation rate spiked at 7 percent in 2021 and now is only 3.4 percent.

Additional forms of pent-up demand affected American life during the initial post-war era. Millions of individuals outside our borders sought refuge from a world destroyed by conflict, persecution, and mass murder.

Based on the 1890 census, the Immigration Act of 1924 established a National Origins Formula which limited immigration from foreign countries both in gross number and tied to the percentage of Americans that shared the same race, ethnicity or country of origin as prospective immigrant groups.

The selection of the 1890 census purposefully skewed preferences to strongly favor WASP immigration by ignoring the 14 million immigrants to the country between 1890 and 1920 from non-English speaking countries in Europe as well as longstanding historical limitations on Asian immigrants.

The restrictive policies contained in the 1924 Act coupled with a protective Congress severely limited the United States response to refugees fleeing Nazi and Japanese tyranny in the years leading up to and during the war.

Given post-war support for returning GIs and for the admission of their wartime brides, fiancées, and family members as well as the desperate circumstances faced by millions residing in “Displaced Persons” camps in Europe, America did make adjustments. They were modest and far from meeting the need, but it was a start.  

These types of policy adjustments would become a re-occurring theme during the 1950s to address a variety of social issues.

In the immediate aftermath of the war, Americans had an insatiable thirst to “get on with their lives” and make up for the four years of opportunities and hopes that had been side-tracked or lost.

Government policies supported individuals’ efforts “to get on with their lives” and together created the American middle-class. Specific policies included the GI Bill supporting education, funding for the interstate highway system, and the continuation of high rates of income taxation instituted during World War II. These policies and efforts along with the increased influence of labor unions in raising wages for working families all contributed to the rise of the modern American middle-class.

The war effort – requiring “all hands-on deck” – also demonstrated to minorities, women, and the underclasses that their contributions had made a significant difference. In the decades to follow, those groups began to push back against male WASP-dominated American society.

The momentum for social change that started in 1950s through the de- segregation of the military and the beginnings of de-segregation in public schools would later explode in the dramatic Civil Rights Movement of the 1960s and gain further momentum in the 1970s Feminist Movement.  

This series of commentaries originated from Nikki Haley’s observation that racism was a lot worse when she was growing up in the 1970s than it is today. Her criticism of 1970s era racism applies with all the more force to the 1950s and the same can be said for a host of other social issues.  

One of the many achievements of the Civil Rights Movement was the passage of The Immigration Act of 1965 which eliminated the National Origins Formula contained in the 1924 Act and allowed Nikki Haley’s parents and tens of thousands of other Asians to immigrate to America.

No one expects MAGA Republicans to model income tax rates on the levels of the 1950s, improve race relations, or offer meaningful assistance to displaced immigrants of color. That has never been part of the MAGA agenda.

There is a political playbook from the 1950s that Donald Trump unerringly embraces which has served as a model for his political career since its inception.

McCarthyism is the subject of the next and final commentary in this series.
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Samuel Damren is a retired Detroit lawyer and author of “What Justice Looks Like.”

COMMENTARY: A candidate keeps getting a free ride at media’s expense

February 23 ,2024

With a Trump Trump here, and a Trump Trump there, here a Trump, there a Trump, everywhere a Trump Trump...e-i-e-i-o.
The nation’s media might consider adopting “Old MacDonald Had a Farm” as their theme song when it involves covering Donald Trump. They are committing the same coverage sin they did in
the 2015-16 presidential campaign, giving him inordinate free coverage around-the-clock.
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By Berl Falbaum

With a Trump Trump here, and a Trump Trump there, here a Trump, there a Trump, everywhere a Trump Trump...e-i-e-i-o.

The nation’s media might consider adopting “Old MacDonald Had a Farm” as their theme song when it involves covering Donald Trump. They are committing the same coverage sin they did in
the 2015-16 presidential campaign, giving him inordinate free coverage around-the-clock.

When I check my email, I receive a summary of the day’s major news. Invariably, the top stories involve Trump more than 90 percent of the time. Every time I turn on the TV for news, the stories are generally about Trump. Only the commercials are free of any mention of the former president. Another example: The New York Times published nine Op-Ed pieces on one day of which seven—that’s seven—covered Trump and/or Trumpism. On other days, the paper publishes at least two-three Trump Op-Eds.

The media’s fixation with Trump is total; they simply cannot get enough of him.  No matter how egregious or meaningless his actions or speeches, they are sure to garner major coverage in newspapers and are subject to “intense analysis” on cable new shows.

In a word, it is inane but the coverage again reveals how the media, especially cable news, is addicted to Trump because they believe it helps their ratings. Cable news stations even followed his plane arriving and leaving cities where he had court hearings. Then they broadcast his motorcades. Really?

Since Trump came on the scene as a presidential candidate in 2015, every single word by Trump, every action—no matter how offensive or meaningless—is subject to extensive examination, as if it were the first time that he uttered something controversial.

Studies on the 2015-16 campaign and election concluded that he received between $2-3 billion of free advertising. Research found that Trump received 2-½ times more free coverage in the 2015-16 campaign than Hillary Clinton.

The media tracking firm, mediaQuant, put the figure of free coverage at $5.6 billion in the 2016 campaign more than his competitors for the presidency, Clinton, Bernie Sanders, and Ted Cruz, combined.

A New York Times study revealed that Trump’s 13 Republican competitors in the 2015-16 campaign received just over $1 billion of free media coverage.

Robert Kagan, Washington Post editor-at-large, wrote that after Trump wins the Republican nomination for president, as expected, “He will again become the central focus of everyone’s attention. Even today, the news media can scarcely resist following Trump’s every word and action.” Indeed, he dominates the print and broadcast media without the nomination.

Consider the following example: One of Trump’s attorneys, John Lauro, appeared on all five major political talk shows during one weekend. At an average of 15 minutes for each interview, he received an hour and 15 minutes of free time to defend Trump on his legal woes.

In his appearance, Lauro told us that a “technical violation of the Constitution,” is not a crime, adding that when Trump asked numerous officials to overturn the election, he was not pressuring them but he was being aspirational. He said all this with a straight face.

I understand that some invited him to the shows, to “trip him up.” It ain’t gonna happen. For all his shortcomings, Lauro is no dummy; he knows exactly what will be asked, he has his talking points, and, most important, the objective is simply to be on the air. He wins as soon as interviews begin.

Of course, Trump’s defense deserves to be covered but a one-two minute summary of Lauro’s arguments would have been sufficient.

Elsewhere in the Trump media world, do we need news stories with film every time Trump appears behind a podium to call the latest charge against him a “witch hunt?” According to Trump, we have had more witch hunts than they had in Salem in the 1690s. I think I remember that the Mueller investigation was a witch hunt as was the Stormy Daniels scandal, the January 6 committee hearings and the ...

One more point:  Trump sucks up all the political air time on TV. Thus, there is little time to cover Joe Biden and his policies—good or bad. Even a sitting president cannot break through the Trump-controlled news cycle.

The worst part?  The coverage is not going to change. Trump makes good copy (and he knows it) and the more sensational and uglier his remarks, the better.

In 2021, three years ago, Kyle Pope wrote in a Columbia Journalism Review essay titled “Our Damned Trump Fixation” that: “For too long, political journalism has listened mainly to the loudest talkers. It’s time, finally, to hear from other voices.”

And, to that, let us say: e-i-e-i-o.
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Berl Falbaum is a veteran journalist and author of 12 books.

MY TURN: A parade gives way to another round of violence

February 23 ,2024

Just days after the University of Michigan football team won the national title on January 8, some lifelong friends and I decided to bask in the glory a bit more by attending the championship parade down State Street in Ann Arbor, braving below-zero wind chills as we stood in snow banks to salute our conquering heroes.
While waiting for the festivities to begin, one of my U-M friends surveyed the tens of thousands lining the parade route and wondered aloud, “I sure hope no one does something sinister today.”
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Just days after the University of Michigan football team won the national title on January 8, some lifelong friends and I decided to bask in the glory a bit more by attending the championship parade down State Street in Ann Arbor, braving below-zero wind chills as we stood in snow banks to salute our conquering heroes.

While waiting for the festivities to begin, one of my U-M friends surveyed the tens of thousands lining the parade route and wondered aloud, “I sure hope no one does something sinister today.”

Such as setting off homemade bombs as was done by two terrorists along the Boston Marathon route in 2013, killing three people and injuring more than 260 others.

Or by spraying bullets from a high-powered rifle into a throng of parade-goers, as happened February 14 in downtown Kansas City when thousands of fans gathered to celebrate a second straight Super Bowl championship by their beloved Chiefs.

In the Kansas City tragedy, one person was killed and at least 22 others were wounded, some with life-threatening injuries. In the grim aftermath, one reporter – Justin Baragona of The Daily Beast – offered the following sentiment: “Two American traditions like no other – football and mass shootings.”

His words serve as a numbing indictment of our unwillingness to address the long-standing problem of gun control, which like so many other nettlesome issues have taken a backseat to another “great” American tradition – political polarization.

According to ABC News, gun violence has cost the lives of nearly 5,000 people so far in 2024. The killings are amplifying calls for stricter gun control legislation to help prevent further bloodshed. Not surprisingly, Second Amendment supporters see the issue in an altogether different light, claiming that schools, stores, churches, and other gathering places need a well-armed security force to thwart future attacks, and that “you cannot legislate evil.”

In other words, the string of mass shootings only seems to widen the political gap between gun supporters and those advocating for change in our gun laws.

Which leaves us to wonder how do we best bridge that divide when dealing with the critical issues of the day. It’s a rhetorical question that has few easy answers – but remains one that instead of prompting a collective desire for decisive action, seems to promote nothing more than pain and paralysis.

When historians survey the first 24 years of the new Millennium, they likely won’t be very kind to the key political figures, particularly those who revel in sound bites and needless posturing.
Take the hot-button issue of gun control, for example. Just the mere mention of it automatically sends proponents and opponents into their separate corners where any attempt at compromise proves futile.

Instead, we are content to sit back in a political straightjacket awaiting word of the next mass shooting, powerless to take any meaningful steps to prevent the horror perpetrated by a gunman.

The senseless killings stir unpleasant memories of when such sickness reared its head in April 1999 at Columbine High School in Littleton, Colo. There, in the suburb of Denver, was the scene of a shooting spree carried out by two teens who originally planned to bomb the school facility.

When two would-be bombs failed to detonate, the teens began gunning down students outside the school before continuing their rampage inside, eventually killing 12 students, a teacher, and then themselves.

At the time, it was the worst school shooting in the nation’s history, a dubious distinction that years later would be surpassed by mass killings at Sandy Hook Elementary School in Newton, Conn. and Marjory Stoneman Douglas High School in Parkland, Fla. Locally, the plague of mass shootings became even more painful in 2021 when four students were killed at Oxford High School in a case that continues to reverberate today.

The tragedies, of course, reignited the national debate on gun control and school safety. It also has prompted many political leaders to trot out the shop-worn phrase of “my thoughts and prayers go out to the victims and their families” as we consider the ramifications of yet another deadly example of gun violence.

One thing remains certain, however: nothing will change in terms of limiting the easy availability of weaponry. Those who believe in the “right to bear arms” will be emboldened even more in the wake of the latest shooting, somehow believing that the only way to counter such killings is to be armed to an even greater degree.

Now, as we grow almost indifferent to news of another senseless slaughter, it’s time for Congress to reevaluate its all-too-cozy relationship with the National Rifle Association, whose idea of gun control is “using two hands” on whatever the weapon. Such political sway by the gun lobby only serves to place us all in the crosshairs of the next hell-bent killer.

Legal People ...

February 16 ,2024

Plunkett Cooney associate attorneys Claire D. Vergara and Aleanna B. Siacon were recently appointed to executive positions on the  Michigan Asian-Pacific American Bar Association (MAPABA) board of directors.
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Plunkett Cooney associate attorneys Claire D. Vergara and Aleanna B. Siacon were recently appointed to executive positions on the  Michigan Asian-Pacific American Bar Association (MAPABA) board of directors.

Vergara was elected to serve as board president. Siacon was elected as the association’s new treasurer. Both will serve a one-year term in their executive leadership roles which began on Feb. 10.

As president, Vergara will preside over all of the association’s membership and executive board meetings, and she will act as liaison of the MAPABA to other affiliate groups and organizations. In her role as treasurer, Siacon will supervise the custody of MAPABA funds.

Stemming from the civil rights trials arising out of the 1982 hate-crime murder of Vincent Chin in Detroit, the MAPABA was formed to promote the legal interests of Michigan’s Asian-American community. The association’s mission is to promote improvements in the administration of justice, to advance relations between the legal profession and public, to secure social equality for Asian-Pacific Americans, to advocate the interests of Asian-Pacific Americans in the legal profession, and to promote equality and social justice for all people.

Vergara is a member of the Detroit office of Plunkett Cooney. She focuses her litigation practice in the areas of medical liability, trucking litigation, first-party No-Fault auto insurance disputes and third-party motor vehicle negligence claims. She also has experience handling insurance-related matters involving personal injury and general negligence.
Licensed to practice law in the state and federal courts in Michigan, Vergara received her law degree from Western Michigan University Cooley Law School in 2012. She received her undergraduate degree from the University of Michigan in 2009. Her professional organization involvement also includes the State Bar of Michigan.

Siacon is a member of Plunkett Cooney’s Torts & Litigation and Governmental Law practice groups. She maintains a diverse litigation practice that includes the defense of premises liability, municipal liability and product liability claims, as well as cases involving general negligence.

Prior to graduating from Wayne State University Law School in 2022, Siacon worked as a summer associate at Plunkett Cooney and as a civil division intern for the U.S. Attorney’s office in the Eastern District of Michigan. In addition, she has the distinction of having served as a judicial intern U.S. District Court Judge Mark Goldsmith, Eastern District of Michigan. Siacon received her undergraduate degree from Wayne State University in 2019.

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Bowman and Brooke LLP
announced a series of key leadership updates in its Detroit office effective February 1.

Jodi Schebel
has been elected as the executive managing partner and will serve on the six-person executive managing team alongside fellow Detroit Partner Tom Branagin. Jenny Zavadil has been elected as managing partner, and Tom Isaacs has been elected co-managing partner.

Partner Carmen Bickerdt is the firm’s co-chair of the Diversity, Equity & Inclusion Committee.

The firm is also pleased to recognize the following promotion and new hires: Mark Laidlaw has been appointed to partner; Michelle Noorani is a new hire partner; and Dacian Rusz is a new hire associate.
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•            •            •

Mike Morse Law Firm
is pleased to announce it has won a 2024 Golden Gavel Award for Best :30 Second Commercial. This is the -fifth time in five years the firm has received this coveted distinction, honoring the Mike Morse team for their unique, creative, and high-quality video productions.

The Golden Gavel Awards, which recognize exceptional marketing work in the legal industry, were held on Jan. 19 in Miami. The firm was also a finalist for Best Public Relations Ad, Best Client Testimonial, and Best :60 Second Commercial.

The commercial, titled “What Matters” spotlights what matters most to people who have been injured in the state of Michigan, from who they choose to represent them and who they employ, to whether they know the local courts and can win the case.

For the last 11 years, Mike Morse Law Firm has collaborated with Michigan-based Lerner Advertising to produce its commercials. In 2020, the firm won a Golden Gavel Award for a :30 second TV commercial titled “Ambulance Chaser.” In 2021, it won for a :60 second TV commercial titled “Masked Mike,” and in 2022, it won for a :30 second TV commercial titled “Sharpies.” In 2023, it won for Best Public Relations Ad featuring the firm’s annual Project Backpack program.
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•            •            •

Honigman
is pleased to announce its recognition by the World Trademark Review as a 2024 WTR 1000 ranked firm. In addition to the firm receiving national recognition and regional rankings in Michigan, Illinois, and Washington, D.C., the following local attorneys have been named:

Anessa Owen Kramer
– Michigan
Julie E. Reitz
– Michigan
Deborah (Bea) Swedlow
– Michigan
Leigh C. Taggart
– Michigan
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•            •            •

Bodman PLC
is pleased to announce that Emily A. Cross has been admitted as a member of the firm.  She was previously a senior associate.

Cross practices in Bodman’s Troy office and is a member of the Litigation and Alternative Dispute Resolution and Automotive and Industrial practice groups. She represents clients in complex commercial litigation matters, including securities litigation, contract disputes, constitutional litigation, and administrative law matters, and in a broad range of other commercial and business disputes. Cross also has automotive industry experience and handles transactional and litigation matters for clients in the automotive industry.
Cross is active in pro bono matters including representing clients in immigration appeals to the Ninth Circuit and representing asylum and u-visa applicants in immigration applications and proceedings. She is a graduate of the University of Michigan Law School and received her undergraduate degree from Rice University.


COMMENTARY: The attack on employment noncompetes: The status of federal initiatives explained

February 16 ,2024

Historically, enforcement of noncompete agreements has been a subject of state law, not federal law. States have taken many different approaches to the agreements. A few states have enacted laws that ban the enforcement of noncompetes entirely, such as California, Minnesota and legislation passed in New York that was recently vetoed by the New York Governor. Others, such as Illinois, Colorado, and Washington, have restricted noncompetes to highly compensated employees by statute, while most continue to regulate noncompetes on a case-by-case basis through the courts.
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By Paul E. Starkman
and Daniel V. Kinsella

Historically, enforcement of noncompete agreements has been a subject of state law, not federal law. States have taken many different approaches to the agreements. A few states have enacted laws that ban the enforcement of noncompetes entirely, such as California, Minnesota and legislation passed in New York that was recently vetoed by the New York Governor. Others, such as Illinois, Colorado, and Washington, have restricted noncompetes to highly compensated employees by statute, while most continue to regulate noncompetes on a case-by-case basis through the courts.

Recently, however, the federal government, through several agencies, has tried to impose a nationwide one-size-fits-all approach that would have the effect of banning all noncompetes throughout the United States. Unlike the actions of the states, the actions of the federal government have been undertaken by executive agency action without input from the legislative branch, Congress, and have not yet been reviewed by the courts.

Federal efforts to invalidate noncompetes can be tracked to Executive Order No. 14036, “Promoting Competition in the American Economy,” on July 9, 2021, which called on federal agencies to “curtail the unfair use of non-compete clauses and other clauses or agreements that … unfairly limit worker mobility.” Following the issuance of Executive Order No. 14036, several federal agencies, specifically the Federal Trade Commission (FTC), the Department of Justice (DOJ), and the National Labor Relations Board (NLRB) have taken action on employment non-competition agreements in one form or another.

However, the current status of these federal initiatives is that none of the agency actions has become effective yet. It appears highly likely that all three will be challenged in the courts and there remains serious doubt as to whether any of them will survive.

The FTC’s Attack on Noncompetes


The FTC is the primary federal regulatory agency to initiate action against employment noncompetes. On Jan. 5, 2023, the Federal Trade Commission (“FTC”) proposed a new rule that would make it illegal for most private employers in the US to enter into covenants – not to compete (“noncompetes”) and require employers to rescind existing noncompetes. The proposed rule would make it an “unfair method of competition” in violation of the FTC Act for an employer to: (1) enter into or attempt to enter into a noncompete clause with a worker (which includes an independent contractor); (2) maintain a noncompete clause with a worker; or (3) represent to a worker that the worker is subject to a noncompete clause where the employer lacks a good faith basis to believe that the worker is subject to an enforceable noncompete clause. The proposed rule exempts noncompetes arising out of the sale of a business if the individual owns 25% of the business.

The proposed rule also could prohibit “de facto noncompete clauses,” which are defined as any clause that has the “effect” of prohibiting a worker from seeking or accepting employment or operating a business at the end of employment. The proposed rule states that a “functional test” will be used to determine whether a contractual term is a “de facto noncompete clause.” However,  the proposed rule fails to define the test further.

The FTC’s proposed rule has been published in the Federal Register and the public has had the opportunity to submit comments to the FTC. The period in which the public could comment expired on April 19, 2023. During the comment period, the agency received more than 26,000 comments. Following a review of the comments, the FTC will need to vote on the proposal or any changes prior to the issuance of a final rule. Bloomberg Law reports, per an undisclosed source, that the FTC will not vote on its final rule until April 2024. If made final, the proposed rule would become effective 60 days thereafter. However, employers would have 180 days after the rule becomes final to comply.

It is very likely that any final rule will be challenged in court. Any final rule will likely be challenged in court. In January 2023, the U.S. Chamber of Commerce threatened to file a lawsuit attacking the FTC’s final rule. Legal challenges to any final rule issued by the FTC will be made on many grounds. One challenge that will certainly be made is that the FTC’s final rule should be stricken under the so-called “Major Questions” doctrine. Under that doctrine, the U.S. Supreme Court has held that an administrative agency cannot “assert a highly consequential power beyond what Congress could reasonably be understood to have granted.” The “major questions” doctrine holds that courts should “hesitate” and refrain from deferring to agency statutory interpretations on questions of “vast economic or political significance” unless Congress “clearly” authorized such agency action.

Under the FTC Act, the Commission’s authority has been defined as enforcing the antitrust and consumer protection laws. During the past 110 years since the FTC Act was passed, no court has upheld the FTC’s argument that noncompetes violate the Act, including in cases brought by the FTC itself.

Thus, if the FTC issues a final rule, regardless of whether the final rule is similar to its proposed rule, the final rule is likely to be subject to immediate judicial scrutiny. It is currently unclear what form the FTC’s final rule will take and whether it will survive legal challenges once it emerges.

In the months since the proposed rule was issued, the FTC also issued complaints against three large manufacturers as well as a security guard services company, to force the companies to drop widely used noncompete agreements. The companies each entered into consent orders with the FTC that, among other things, prohibit the companies from enforcing noncompete agreements involving hundreds of employee positions, including both rank and file and managerial positions. The consent orders also require the companies for the next 10 years to provide clear notices to new employees that they may freely compete with the company following their employment. Contrary to the blanket ban on noncompetes in the FTC’s proposed rule, its more recent complaints applied a more selective approach that did not attempt to ban the use of noncompetes with high-level executives.

Cooperation Among Federal Agencies On Noncompetes


On July 9, 2023, President Biden issued an Executive Order on noncompetes. The Executive Order directs all federal agencies to cooperate with the Department of Justice or the FTC in the oversight and investigation of the enforcement of noncompete agreements.

On Sept. 21, 2023, the FTC announced a new cooperation agreement with the U.S. Department of Labor, to share additional information to help police noncompetes. The FTC already entered into such an agreement with the National Labor Relations Board.

The Department of Justice and Noncompetes


In relatively rare instances, the U.S. Department of Justice (DOJ) has dealt with restrictive covenants on a case-by-case basis. The DOJ’s efforts have primarily involved what are known as “no-poach” agreements, in which two entities agree not to “poach” (or solicit for employment) each other’s employees.

In one example of a case involving a “no-poach” agreement, the DOJ obtained a guilty plea in 2022 in a criminal antitrust prosecution. The charges stemmed from an agreement that the company pleading guilty had with a competing company—both of which were providing contract nursing services to a school district in Nevada—not to hire each other’s nurses or to raise their wages.

Occasionally, however, the DOJ has intervened in cases involving true noncompete agreements between an employer and its employees to prevent them from going to work for a competitor of the employer. Here too, it has done so only in individual cases. Recently, in 2023, the DOJ announced that it had entered into consent decrees with three companies to invalidate their noncompetes with certain low-wage-earning employees. Currently, there is no reason to think that the DOJ’s case-by-case attacks on noncompetes have ended.

There is a clear difference between prohibiting anti-poaching agreements and prohibiting noncompetes under antitrust law. Anti-poaching agreements would be considered classic horizontal trade restrictions and more likely subject to antitrust enforcement.  Noncompetes would be considered vertical agreements that could have a horizontal effect. Antitrust law generally recognizes differences in the economic effect on commerce.

Noncompetes Under the Current NLRB


The NLRB has taken an approach that is different from the FTC or the DOJ. The NLRB General Counsel Jennifer Abruzzo announced in her May 30, 2023 memorandum that, in her view, noncompetes generally violate federal labor law. The General Counsel takes the position that, in most instances, these types of agreements will unlawfully interfere with employees’ right to engage in protected concerted activity. The NLRB’s General Counsel has said that the focus will fall on noncompetes with “low-wage or middle-wage workers,” particularly those who lack access to their employer’s trade secrets.

First, any NLRB ruling would be limited to employees who are not supervisors, managers, or confidential employees as those terms are defined by the National Labor Relations Act and the case law. Second, since a noncompete would, arguably, only affect an employee who is no longer employed, the basis for an NLRB finding that such an agreement interferes with a current employee will be subject to challenge.

The NLRB itself has not yet ruled on the General Counsel’s position and when the NLRB does rule, a federal court of appeals will decide whether or not to enforce it.

Two NLRB regional directors have brought unfair labor practice complaints targeting noncompetes, including one alleging that a noncompete agreement violated the National Labor Relations Act by forbidding low-wage workers from acting in concert to leave their employer and go to work for a competitor in the same state for two years after separation. In Berry Green Management, Inc., N.L.R.B. Reg’l Dir., Case 07-CA-296276, the NLRB brought its first enforcement action against a Michigan cannabis processor alleging that its noncompete agreement constituted an unfair labor practice, but the case ended in May 2023 with a private settlement. Nonetheless, the NLRB could issue a ruling in the near future that bans most noncompetes (and nonsolicitation agreements) in the U.S., but such an NLRB ruling would be subject to appeal to a federal appellate court.

In conclusion, federal regulatory initiatives to restrict noncompetes are still in preliminary stages. Moreover, such efforts by federal regulatory agencies, such as the FTC, DOJ, and NLRB, may ultimately be unsuccessful after judicial review. However, there is no indication that the federal government is done trying to ban employment noncompetes.
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Paul E. Starkman and Daniel V. Kinsellaare attorneys with Clark Hill.

COMMENTARY: A ‘model’ decade it was not by any stretch of reason

February 16 ,2024

This is the third commentary in a series examining two periods in our history that Donald Trump claims were “great” compared to the present era: 1900–10; and the post-World War II era through the 1950s.  
The second commentary compared the absence of women’s rights, a social safety net, government oversight of working conditions for adults and children, severe limitations on educational opportunities, and the rampant racism of the decade 1900–10 with the laws and policies of America today.
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By Samuel Damren

This is the third commentary in a series examining two periods in our history that Donald Trump claims were “great” compared to the present era: 1900–10; and the post-World War II era through the 1950s.  

The second commentary compared the absence of women’s rights, a social safety net, government oversight of working conditions for adults and children, severe limitations on educational opportunities, and the rampant racism of the decade 1900–10 with the laws and policies of America today.

The comparison of additional factors set forth in this commentary – the economy, housing, immigration, religious and ethnic bias, and crime – will strengthen the conclusion that the decade cannot serve a model to “Make America Great Again.”

The economy was booming in 1900-10, but no more so than it is today. The “Gilded Age” consolidated disproportionate wealth in 1 percent of the population just as it has today.
However, unlike today, there was no middle class. Eleven out of 12 American families lived in poverty.  Approximately 12 percent of Americans live in poverty today.

In 1900-10, some 46 percent of Americans owned a home. The figure is deceptive because the vast majority of homes were in rural areas and (to be kind) modest.  In urban settings, most Americans rented and (to be accurate) lived in slums.

Today’s prospective homeowners feel burdened by excessive mortgage interest rates. However, securing affordable financing to purchase a home in 1900-10 was simply impossible. Borrowers were required to make a 50 percent down payment and pay off the principal balance in 5 to 6 years.

Government loan support through FHA and Fannie Mae did not exist until the late 1930s. Those programs, bolstered by the creation of Freddie Mac in 1970, made affordable mortgage financing available to the hundreds of millions of Americans who now own homes.

Immigration policy, the incendiary issue of 2024 politics, was vastly different in the decade of 1900-10. But not in the way you suspect.

The borders were essentially open to all immigrants who could pay an immigration charge upon entry and were not suffering from contagious disease.

The Immigration and Naturalization Service did not exist.  

From 1900-10, roughly 9 million immigrants were naturalized in the United States and increased the country’s population to 92 million. The sheer number of immigrants was amazing. By 1910, nearly one out of every 10 Americans had immigrated to the country during the prior decade.

If that rate of immigration were applied today, 33 million Americans out of the current population of 335 million would have been naturalized from 2012-22.

The actual number is 8 million; roughly one out of every 40 Americans.

A majority of the immigrants in 1900-10 were non-English speaking economic refugees from eastern and southern Europe. One might speculate that because the immigrants were white, they were welcomed.

That supposition would be wrong.

Instead, so-called “nativists” publicly denounced the newcomers as immoral brutes, dumb, and criminal. If Catholic, then based on the bigoted assumption that they would place loyalty to the Pope above allegiance to America, nativists portrayed immigrants as security threats.

In fervent opposition to today’s immigrants, MAGA Republicans use the same playbook to impugn people of color and Muslims.

Reliable crime statistics do not exist for the decade 1900-10. The FBI did not come into existence until 1908 with 34 agents in total. Many crimes on the “books” today were either not crimes in 1900-10, went unreported or were not charged.  For example, marital rape was not a crime; child abuse was seldom reported.

Race riots of the era involved white mobs attacking blacks, including the Wilmington Massacre of 1898 in North Carolina where a white mob murdered black elected officials and took over city government in a coup d’etat.

Based on the historical record, it is hard to understand why anyone would claim that the decade 1900-10 could possibly serve as a model to “Make America Great Again.”

But it depends on perspective. When Trump assesses the benefits of the era, he is thinking how Americans like him, rich business elites, were treated then and what liberties they enjoyed compared to the present day.

Rigorous financial and banking regulation did not exist in 1900-10. Many prominent judges and elites endorsed the “laissez-faire” approach to business long championed by Justice Stephan Field in the late 19th century. Some went so far as to regard government regulation as the confiscation of property rights.

Trump’s attitude toward the financial fraud case presided over by Judge Arthur Engoron in New York is emblematic of that mindset.

Trump remains angered that any court should oversee his business practices. As to misrepresentations in loan applications, he asserts the banks were on notice to perform their own due diligence. As a consequence, and New York statutes notwithstanding, there was no obligation for him to be accurate or truthful.

Trump displayed the same Gilded Age attitude to the court and E. Jean Carroll in her recent defamation case.

From Trump’s perspective, Carroll was and is a person of “no account” who lacks  standing to hold him “to account” for allegations he “vigorously and strongly” denies. It was and is Trump’s position that his denial should have ended the case before it ever commenced.

As a person of “stature and wealth,” Trump also believed and believes that once the trial commenced he was entitled to provide testimony when he desired, regarding whatever issues he chose and without the constraint of rules and procedures that apply to others.

It was inconceivable to Trump that such deference was not fully accorded him by the trial judge.

The next two commentaries focus on the post-World War II years through the 1950s, an era that Trump also claims serves as a model to “Make America Great Again.”
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Samuel Damren is a retired Detroit lawyer and author of “What Justice Looks Like.”