Dear Friend,
There’s a good chance that you can accomplish some or all of what a covenant not to compete addresses, even if the “law” says you can’t.
That was the subject of Monday's blog post, Better Way For Medical Groups To Look At Covenants Not To Compete You can follow the link to read the post online, or just keep reading.
Don’t overthink covenants not to compete, because I’ve done it for you.
My earlier article, You Need to Know What the Order Striking the FTC’s Ban on Non-Competes Means for You, sure hit a nerve.
Many medical group leaders jumped for joy upon learning that the FTC’s ban on non-competes had been struck down, but then came back to earth, hard, when they realized that state law still applied.
The overthinking then began: “Mark, what if we just do blah blah blah?” “Mark, what if we just do such and such?” “Mark, what if we just do yada yada yada?”
Sheesh, more bad ideas than there are fleas on a junkyard dog!
Calm down, and let me, as one of my law school professors used to say, drive the bus.
As an aside, as I mention in You Need to Know What the Order Striking the FTC’s Ban on Non-Competes Means for You, we need to know what the particular state law provides. Note that this question is actually an aside for you, but not for me: The issue of what state law applies is far more complex than simply investigating the law of the state in which you are located.
The next stop on the journey for you as a medical group leader is to think about what you’re actually trying to accomplish, what you’re really trying to protect. Simply saying “to stop all physicians and other providers on our team from competing” isn’t thinking very deeply because, for most, the chances are great that that’s an unreachable destination. That said, it might actually be possible, although you might not have the stomach for what’s required. Maybe you do.
Thinking deeply about your underlying concerns is important because there are other ways to gain protection, i.e., to achieve certain goals, that don’t involve covenants not to compete, some of which are near identical in impact but are not them, and some of which aren’t even within the same universe.
And, as opposed to how the usual lawyer might approach the issue, what the law says you can or can’t do is informative and necessary, but by no means sufficient. Creativity isn’t taught in law school and there are some very creative ways to get what you often want.
It all starts with the right questions.
“Mark, this is what we want to accomplish, how do we get there or close enough to it?” is a valuable way to start.
But, “Mark, my cousin says we can just do X, Y, Z” is generally worth, well . . . yada yada yada.
Worth a chat?
