Noncompete Claws

Colette Buser worked as a camp counselor for three years, then – at age 19 – moved to a different camp. But the job offer was abruptly withdrawn. It seems Colette’s previous employer had a noncompete clause in her contract and threatened to sue.

You know how jealously those companies have to guard their intellectual property. What if a competitor – or the NSA or hackers from the Chinese Army –were to get hold of the technology for sharpening sticks to toast marshmallows?

In a similar case, hair stylist Daniel McKinnon left his salon job but then was prevented by a noncompete clause from taking a new job – and he hadn’t even quit.

He had been fired because of friction with his manager. They must have feared that in retribution he would reveal the secret of how to do a spit curl without expectorating.

Whatever their psychosis, the judge agreed that McKinnon’s ex-employers had Massachusetts law on their side (though Governor Deval Patrick is now trying to change it). Why do state legislatures enact laws so exploitative of workers and contemptuous of their rights?

Could it be this simple — that camp counselors and hair stylists have no political PACs and no lobbyists?

These are not isolated cases. Noncompete clauses are a hot trend, reports the New York Times (where these two episodes were cited) –not just for engineers and scientists with highly sensitive inside knowledge but also for chefs, stock clerks, green grocers, lawn trimmers, yoga teachers, beauticians, and grunts on the shop floor.

Many states, though far from all, insist that noncompetes be narrowly limited and serve a legitimate business interest. A majority of economists, labor experts, and venture capitalists see noncompetes as suppressing competition (obviously) and stifling innovation – and they point to Silicon Valley as the kind of dynamic that can flourish in the absence of noncompetes — which are banned in California.

“Where noncompetes are not enforced, there’s a more open labor market,” says Matthew Marx, a professor of entrepreneurship at MIT. “Companies compete for talent.”

Companies compete for talent. Can you imagine? Sounds almost like free market capitalism.

Illegal to Lie in Ohio

We’ve lost track of proceedings in some important court cases – maybe you can help us out with an update? We apologize, but we have an excuse from our mother country, whose Supreme Court has five conservative justices who have lost track of the entire Constitution.

But back to specifics:


Tommy the chimpanzee and three other primates have filed for writs of habeas corpus to gain their freedom so they can retire to sanctuaries.

Tommy’s lawsuit was scheduled for filing in December in a New York county court, and other cases for Kiko, Hercules, and Leo were headed for Niagara Falls and Suffolk County jurisdictions.

Acting for the chimps is The Nonhuman Rights Project (NhRP), which reputedly enjoys the support of Jane Goodall. The group’s president, Steven Wise, says these actions will later be followed by more chimpanzee suits in other states and by petitions on behalf of whales, dolphins, elephants, and great apes.

The chimpanzees were rescued from miserable conditions in the entertainment industry and given homes by several good samaritans who now find themselves being sued as if they were kidnappers.

We at The Horse have conflicted feelings about these cases, but we can’t wait to hear the Supreme Court explain how a corporation is a person, but a chimpanzee – which shares 97% of the same genes as the chief justice – doesn’t get a black robe and doesn’t even qualify as a person.


Elsewhere in Criminal Justice, Ohio’s legendary legislature has passed a law making it a crime – punishable by jail time and a $5,000 fine – to lie about a candidate running for office.

The Supreme Court was scheduled to hear arguments in late April. A brief filed by satirist P.J. O’Rourke (author of Don’t Vote – It Just Encourages the Bastards) and the Koch-funded, right wing/libertarian Cato Institute (which lies beyond the boundaries of satire) claims the law is a blatant violation of the First Amendment.

As The Economist notes: “Mudslingers are outraged.”

O’Rourke’s argument: “Disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic) are cornerstones of American democracy.”

After all, he asks, “Where would we be without the knowledge that Democrats are pinko-communist flag burners who will steal all the guns and invite the UN to take over America …… while Republicans are assault weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation?”

Though not party to the filing, The Economist offered its judgment from across the pond: “Government is ill-suited to deciding when a statement crosses the line into falsehood. Forbidding “lies” will not produce political discourse filled with accuracy and brilliance; it will produce silence.”

Well, what’s wrong with that?

The Secret of Total Failure

For various reasons – book leave, sick leave, new leaf leaves – we haven’t been posting for a while, so we really can’t expect anyone to be left in the audience. Still – before the turnstiles are rusted shut entirely – we may have a few afterthoughts, and surely there’s nothing wrong with talking to yourself.

This afterthought is devoted to General Motors and the lessons we’ve divined from their court filings.


GM has asked a federal bankruptcy judge to swat down a gathering swarm of lawsuits stemming from its mishandling of a defective ignition switch — and to bar similar cases in the future — all in one grand dismissal.

That’s one of the potential advantages of bankruptcy – a Get Out Of Jail Free card so you won’t be pestered and penalized or have to pay money just because you’ve killed a few people and endangered millions of others.

Thus, the lesson:

If you’re going to screw up on engineering, production, consumer safety, ethics, and honesty in dealing with customers, be sure you also botch your finances badly enough to get into bankruptcy court to escape responsibility for your sins.

Unless, of course, the judge finds a flaw in the ignition of GM’s argument.


Life’s little potentially lethal vexations.

Earlier this month Facebook announced a new policy. They’re giving themselves “permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content…” — even if you’re as young as 13 years old.

So they can use that beatific smiling photo or video of you to hawk a toothpaste or, for that matter, an escort service. All free. In the real world, models and actors get paid for that.

Meantime, Facebook had to apologize to parents of a girl who committed suicide after the responses to her face appearing on a Facebook ad for a dating service. Apologize? Well that doesn’t cost much. They should fall on their swords.

So what is the name of this licentious, self aggrandizing, even more exploitative charter of rules?

‘Facebook’s Privacy Policy’

There are many tech-savvy young lawyers who have passed the bar but aren’t finding much work these days. How about a class-action lawsuit — challenging Facebook’s perversion of the concept of “privacy” — charging child endangerment and filed on behalf of several million parents of 13 to 17 year olds?

Smart Cheaters and Stupid Saints

I’m writing this on steroids. Prednisone, to be specific, taken to relieve a back spasm that was pinching a nerve.

That was five or six weeks ago, but I’m sure there are residual traces that will show up if anyone insists that I be drug-tested on the suspicion that nobody could possibly write this well without the help of performance enhancing drugs.

As career-destroying mistakes go, this one is fairly minor since career destruction happens to be my chosen vocation. Writers need something to write about.

For athletes, no such cavalier choice is available.

Two years ago, the World Anti-Doping Agency (Agence Mondiale Antidopage, as they call it, amid snickering, around the Tour de France) convened a research study to determine the scope of the blood doping problem in sports. That’s right, 2011.

From the mid 1960s through the 1980s, East Germany was an Olympic powerhouse with an entire team on anabolic steroids. That was obvious, and in the mid 70s, defectors from East Germany filled in the details. One long distance skier said promising young skiers got knee injections starting at age 14.

“For every Olympic champion,” he said, “there are 350 invalids.”

In 1985, Ben Johnson finally beat Carl Lewis in the 100-meter sprint, then was disqualified for steroids. From at least the mid 90s, Mark McGwire, Sammy Sosa, Barry Bonds, Jose Canseco, and onward to A-Rod were setting home run records with the obvious aid of drugs. A scrawny guy would turn into the Incredible Hulk, and officials looked the other way because the home runs were worth billions in attendance, TV rights, and merchandise. Oh, and Lance Armstrong won the Tour de France seven times.

These are a scant few among many thousands of examples. Still, it somehow presented a real puzzler in the feathered nests of the World Anti-Doping Agency and its predecessors, who for some reason needed 45 years even to decide there might be a problem here worth researching.

The scientists they enlisted for the task proved more resourceful than the agency could have anticipated. They mounted a definitive study that blood-tested 2,000 track and field athletes from the Pan American Games and the World Championship, then questioned them in a survey, promising anonymity.

Fewer than 2% tested positive. But 45% of those in the Pan Am Games admitted they had doped within the past 12 months.

You can probably assume that means at least 90%. If you were being asked to admit taking drugs, would you trust the promise of confidentiality? Neither would I.

They all know – their coaches, their agents, their teammates have all told them — If anonymity is what you’re after, all you have to do is refrain from doping, and nobody will ever hear of you because you’ll never be a contender.

So. Now that Anti-Doping Agency officials have the facts, what do they plan to do? Nothing, really.

They told the researchers not to publish the results. They say they might want to think about doing additional, “more comprehensive” research. Apparently 45 years of study is not enough, and Track and Field’s governing body, the IAAF, agrees. They want to wait and maybe combine the 2011 study with blood tests from the upcoming world championships in Moscow. Blood tests – you know — the kind that got 2% positives from athletes who admitted a 45% rate of doping.

Lance Armstrong doped and beat 200 other doped-up riders seven times. If Lance and everyone else had raced drug-free, chances are he still would have won the Tour seven times.

Quel horreur! An American!

Clearly, the perpetrators of the doping problem are not the athletes but the governing bodies and their vast network of commercial funders and sponsors and broadcasters and advertisers. Their salaries and self importance are ample, their lucrative game is rigged, and they can always throw a few diversionary human sacrifices into the circus to lull the public and the media by penalizing a handful of unlucky scapegoats – violators, to be sure, but also victims of the system, along with the thousands of kids and young adults who have had their health compromised and their lives shortened by the effects of drugs.

The Economist recently described an analysis of the doping problem using a branch of mathematics called Game Theory.

In its most famous game – Prisoner’s Dilemma – the participant finds that it would be extremely stupid to be honorable.

The bike racer or football player faces a comparable dilemma. If you dope and don’t get caught, you may become rich and famous. If you dope and do get caught (the 2%), you may be suspended or banned. If you don’t dope at all, you can’t keep up with the people who do, and you’re off the team – which is the same penalty you would suffer if you had doped and got caught. So where’s the disincentive?

Game theory suggests that the only way out of this tail-chase is to test everybody and to publish all the results.

The mathematicians didn’t say – but I think common sense does – that since the dopers have always stayed two steps ahead of the testers, all test samples would have to be saved to await retesting with improved technology. Cheaters would be caught, either now or later. All awards would be considered provisional for a five or seven year validation cycle.

For the first time in half a century, the rational athlete or team owner or manager would realize (most of them happily) that crime doesn’t pay.

As The Economist concludes,

“… the real guilty parties in sports doping are not those who actually take the drugs, but those who create a situation where only a fool would not.”

Attention, Unlicensed Readers

Is your Reader’s Certification up to date?

The reason I ask, I’m an unlicensed writer. Normally, really good readers can make sense of eccentric writing, and good writers can make things clear even to poor readers. But if we’re both arrested at the same time for practicing reading and writing without a license, how are we going to bail each other out?

In the 1950s, only 5% of working Americans needed licenses or certifications to practice their specialties. Now that percentage is 30% — and still climbing.

Unlike you and me, trade associations have some influence on legislators – and can buy more of it.

Who ever heard of a Washington law firm that lobbies for freelancers? Or readers? Or shade-tree mechanics? Or tutors, or tooth-whiteners?

But an association of, say, beauty parlors can lobby the Louisiana legislature to make it illegal to beautify people without an official certificate of accreditation. Then a licensing board (made up of established beauticians, of course) is appointed to set rigorous requirements and licensure procedures.

It’s an old story. Once they get into the club, they want to raise the standards of admission. The beautician application process turns into a 10-year ordeal including required courses that only established beauticians are qualified to teach — for a fee. And then the board turns down most of the applicants despite all that, on one technicality or another.

New competition is held to a trickle, prices are free to rise, and there’s no incentive to improve services — all in the name of consumer protection.

In truth, it’s a license to print money.

Of course you need a license to drive (that’s not included in the 30%), and if you want to go around arresting people you find offensive, you’d better have a badge. If that leads to trouble, you may need a board-certified surgeon.

But in many if not most other cases, licensing is the creature of monopolistic business or professional associations who find it cheaper to hire lobbyists and bribe politicians than to do R&D, innovate, improve their product, and actually earn their customers’ loyalty.

I mentioned tooth-whiteners. That’s the latest licensing scuffle, written up in the Times last Sunday. A lady with a stunning smile invented a tooth-whitening kit called BriteWhite that proved popular at salons and spas.

Customers were smiling, too, whitening their teeth for about $100 instead of the $300 or $400 it would cost in a dentist’s office.

Then BriteWhite’s inventor – Joyce Osborn in Guntersville, Alabama — was served with a cease and desist order from the state dental board, demanding that she stop practicing dentistry without a license.

It turns out that state boards of dentistry across the country are taking similar actions, attacking the many tooth-whitening products and services that have sprung up. As the dentistry boards are keenly aware, the average dental practice makes $25,000 a year from tooth whitening. That’s real money, so don’t try this at home.

You may think you don’t have a dog in this hunt, but the presumptive authority of the dental police could also demand that you cease and desist from brushing your teeth unless you obtain certification as a dental hygienist.

As far as that goes, are you sure you can legally move your sofa? Or re-pot that geranium with a dash of Miracle-Gro?

There are certifying boards for interior design, you know, and for soil science. Also for radio operators, French wine scholars, and certified hospitality instructors.

Surely the unholy collusions of web log readers and writers can’t be allowed to continue without proper supervision.

High Court Lowdown

UPDATE: Barb’s lawsuit reaches Supreme Court.

Should a private company be permitted to patent human genes?

The high court will soon decide. The best known case is that of Myriad Genetics, which holds patents on two DNA sequences and charges fees to doctors who need to reference these genes for diagnoses and genome research.

Barb’s case is less well known, but she’s counter-suing a company called Barb’s Fingernail Genetics, which claims to hold a patent on DNA in the fingernail of her right index finger. The company got a district court order requiring Barb to pay licensing fees if she wants to use that finger in typing U, J, and M, or in buttoning buttons or feeding her cat Andy.

Her suit points out that even if she were willing to pay the licensing fee, Barb would be unable to write a check to Barb’s Fingernail Genetics without having first paid a licensing fee to use the finger to write the check, which is an infinite regression and therefore unconstitutional.

LATEST DEVELOPMENT: Barb’s attorneys have demanded that Justice Scalia recuse himself from the case due to obvious conflicts of interest, given his unlicensed public use of fingers.

The Justice also owns stock in a company called Bushy Eyebrow Genomics.