BSCR Firm News/Blogs Feed

Baker Sterchi Welcomes Max Mosley in Kansas City

03 May 2024

Baker Sterchi welcomes Max Mosley as an associate in the firm’s Kansas City office, where his practice is focused on personal injury, trucking, premises liability and education law. Before his legal career, Mosley was a tenured English as a Second Language teacher with the New York City Department of Education, where he worked with the Internationals Network for Public Schools.

Mosley earned his law degree from the University of Missouri School of Law and holds an undergraduate degree from the University of Missouri-Kansas City. He earned his Master of Science in Education teaching English to speakers of other languages from Long Island University-Brooklyn and is licensed to practice in Missouri.

FTC's New Rule Effectively Bans Non-Competes – What Now?

03 May 2024

ABSTRACT: A new FTC rule bans most non-competes, with the stated objectives of generating over 8,500 new businesses annually, raising wages, lowering healthcare cost, and boosting innovation. The Biden Administration views this as part of a broader effort to address anticompetitive practices. Legal challenges are underway by various business groups; however, the Rule maintains substantial support in other quarters.

The Federal Trade Commission issued the Non-Compete Clause Rule (the “Rule”) on April 23, 2024, by narrow 3-2 vote, banning a vast majority of non-competes nationwide. Both existing and new non-competes are no longer enforceable. Limited exceptions exist for non-competes with “senior executives”—defined as workers earning more than $151,164 annually and who are in policy-making positions—and non-competes created subsequent the sale of a business, which may still be enforced. The Rule states that all employers with now unenforceable non-competes are required to provide notice to affected employees that the non-compete is now void.

The Rule was originally posted for comment in January 2023, receiving over 26,000 comments during the required 90-day public comment period—more than 25,000 of which support this proposed ban. The FTC found non-competes “an unfair method of competition, and therefore a violation of Section 5 of the FTC Act,” noting there are alternatives to non-compete agreements, such as trade secret laws and non-disclosure agreements; notably, nearly 95 percent of workers with non-compete agreements also have non-disclosure agreements. The FTC argues companies can retain workers previously subject to non-competes “on the merits,” by raising wages, increasing benefits, and improving their work environment. Other groups in favor of this ban argue non-competes restrict job mobility, depress wages, and quash innovation by limiting employees seeking to start their own companies.

Importantly, the Rule traces back to the Biden Administration’s 2021 “Executive Order on Promotion Competition in the American Economy.” That Executive Order encourages all relevant federal agencies to address anticompetitive practices within their scope of jurisdiction. Because of this, opponents argue that the FTC, with this Rule, extends past its jurisdictional reach.

The U.S. Chamber of Commerce, along with other prominent groups like the Business Roundtable, immediately sued the FTC in federal court in Texas after the announcement. The USCC contends the FTC lacks authority to promulgate this Rule, stating this type of monumental change in business practice must to be passed by Congressional vote instead. Additionally, many critics state the Rule imposes extraordinary burdens on businesses in protecting their trade secrets, will cause inflation to skyrocket due to predicted wage increases, and ignores state sovereignty since existing state laws already govern non-competes and should continue to do so. While many states have various laws limiting non-competes in some way, only four have banned them entirely prior to this Rule.

The lawsuits could take months (or longer) to unfold and may put the status of non-competes, and the employees that hold them, in limbo. The Rule, while final, is not effective until 120-days after the date of its publication in the Federal Register. Currently, the Rule is scheduled for publication on May 7, 2024, putting the Rule into effect September 4, 2024. Therefore, it is vital for employers to assess what steps must be taken now to prepare. Employers not only must inform their current employees of any applicable changes, but must also shift their hiring and retention strategies.

Key Takeaways

Even in light of current challenges, employers should remain proactive in preparing for the Rule’s publication and enforcement by:

Evaluating current employee contracts for non-compete provisions which violate the Rule, assessing whether revision or rescission is required;
Identify ways to meaningful meet employer’s goals (protect proprietary information; evaluate trade secrets, non-disclosure agreements, confidentiality practices; etc.) while balancing employee satisfaction and allegiance (performance-focused incentives; benefits; work environment/culture; etc.); and
Begin drafting requisite (per the Rule) correspondence to current and former employees about any non-competes no longer enforceable.

Andrew Snively Joins Baker Sterchi in Kansas City

02 May 2024

Andrew Snively has joined Baker Sterchi’s Kansas City office as an associate, with a practice focused on insurance coverage, bad faith claims and personal injury defense for clients across various industries, including banking, food and beverage, and insurance. As an attorney who embarked on a legal career later in life, he brings a wealth of experience to his practice, having previously served in the United States Air Force as a Financial Budget Analyst.

Snively earned his law degree from Pepperdine Caruso School of Law and holds an undergraduate degree from Park University. Recently admitted to practice law in Missouri, Snively was a 2023 Baker Sterchi summer law clerk.

Jim Jarrow to Co-Present "Hot Takes" Session at ALFA Transportation Seminar

26 Apr 2024

On May 3, Baker Sterchi Member Jim Jarrow will co-present a session titled “How A Mongoose Eats A Reptile: Effectively Dismantling Plaintiff’s Reptile Attack” at the ALFA International (ALFA) Transportation Practice Group Seminar in Colorado Springs, Colorado. This “Hot Takes” session will explore strategies for countering the Reptile method, followed by a five-minute roundtable discussion.

Based in Kansas City, Jarrow primarily defends personal injury matters in the transportation and retail industries. With a 30-year career, he is a seasoned trial lawyer with a track record of trying over 100 cases. Jarrow serves as a co-chair of the Baker Sterchi Trucking Practice Group and a steering committee member of the ALFA Transportation Practice Group.

Baker Sterchi is the Kansas City, Missouri and Overland Park, Kansas, member firm of ALFA International, a premier global legal network of 140 independent law firms. The network provides educational programs across various practice areas for attorneys and clients associated with its member firms.

Litigation Paralegal, Kansas City

26 Apr 2024

Our Kansas City office is seeking a highly motivated and skilled litigation paralegal. View the job description here.

Legal Administrative Assistant, St. Louis

25 Apr 2024

Our St. Louis office is seeking a highly motivated and skilled legal administrative assistant. View the job description here.

Michael Shunk to Co-Present at ALFA Insurance Regional Seminar

25 Apr 2024

On April 25, Baker Sterchi Member Michael Shunk is co-presenting the session, “Declaratory Judgment Actions: Strategic Considerations Before Filing,” at the ALFA International (ALFA) Insurance Practice Group Regional Seminar in New York, New York. The session will address the critical factors that often impact the decision to proceed with a declaratory judgment action, while also providing insight and updates on recent developments and trends in this law area.

Shunk's practice centers around the defense of individuals, insurance carriers, and corporate clients in a range of cases, including personal injury, contract and commercial disputes, construction defect, and insurance coverage and bad faith issues. He is a member of the ALFA International Insurance Practice Group and co-chair of the Baker Sterchi Insurance Coverage and Bad Faith Practice Group.

Michelle Meloche Appointed to Leadership of PLDF Healthcare Committee

24 Apr 2024

Baker Sterchi associate Michelle Meloche has been named co-vice chair of the Professional Liability Defense Federation (PLDF) Healthcare Malpractice Claims Committee.

Meloche has been a dedicated member of this Healthcare Committee since joining PLDF last year. In her new role, she will be contributing to publications, responding to member inquiries and presenting at PLDF’s annual meeting.

In addition to her role with PLDF, Meloche is actively engaged in several other healthcare and legal organizations. She is a member of the American Bar Association’s Health Law Section, the American Health Lawyers Association, and DRI’s Medical Liability and Health Care Law Committee.

As a civil litigation attorney, Meloche defends healthcare providers against medical malpractice claims. She earned her law degree from Saint Louis University School of Law with a concentration in Health Law, and she holds an M.P.H. in Health Management & Policy from Saint Louis University. Meloche is licensed to practice in Missouri and Illinois.

PLDF’s mission is to enhance the stature and effectiveness of professional liability defense professionals through education, training and the exchange of information.

John Watt Accepted into Product Liability Advisory Council

23 Apr 2024

Baker Sterchi Member John Watt has been accepted as a Sustaining Member into the Product Liability Advisory Council (PLAC). Sustaining members, comprised of top regulatory, trial and appellate legal professionals from leading law firms worldwide, undergo thorough vetting by the organization's Board of Directors before receiving invitations to join.

Established in the 1980s, PLAC is dedicated to keeping product manufacturers and suppliers informed about industry-related issues and fostering collaboration with outside legal counsel to mitigate risk across the product life cycle. Corporate participants include individuals from the legal, regulatory, technical and risk departments of each member company.

Based in Kansas City, Watt defends businesses in multi-million-dollar litigation cases involving product liability, construction and toxic torts. With extensive experience as a lead attorney in trials at both state and federal levels, Watt has also conducted hundreds of expert witness depositions, presented arguments before appellate courts in Missouri and Kansas, and represented clients in arbitration and mediation proceedings.

As a steering committee member of ALFA International’s Construction Practice Group, Watt served as a co-chair for both the 2022 and 2023 ALFA Construction Practice Group Seminars. Additionally, he is a regular contributor to the Missouri and Kansas sections of ALFA’s Construction Law Compendium. Watt is recognized in the 2024 edition of The Best Lawyers in America for his Construction Law practice in the Kansas City Metropolitan Area.

Baker Sterchi Obtains Dismissal under Missouri's Innocent Seller Statute

23 Apr 2024

Baker Sterchi lawyers obtained dismissal of their national food distributor client under Missouri’s “innocent seller statute.” Plaintiff alleged personal injuries related to consumption of a chicken meal that contained a chicken bone, which he claimed became lodged in his throat and resulted in multiple surgeries. Plaintiff originally named the restaurant where the meal was ordered as a defendant. The restaurant then sought and was granted leave to file a third-party petition against the purported manufacturer of the chicken. Plaintiff followed suit and filed an Amended Petition asserting a claim against the purported manufacturer and also added claims based on breach of warranty and negligence against our client, the distributor. We preserved the innocent seller defense in our answer by pleading R. S. Mo. §537.762, the “innocent seller statute,” as an affirmative defense on the grounds that liability against the distributor was solely based on its status as a seller in the stream of commerce and should be dismissed.

In 1987, the Missouri legislature enacted the “innocent seller statute”. A final report issued in January 1987 by the Missouri Interim Task Force on Liability Insurance indicates that the legislation was designed as a method by which sellers may be released from products liability suits at an early stage of the litigation. § 537.762 states in pertinent part:

A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section. This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff’s claim.

Thus, a seller wishing to avail itself of the statute must establish two things. First, the asserted liability must be based solely upon its status as a seller in the stream of commerce. Second, a defendant from whom total recovery may be had must be before the court.

There was a question of fact as to the identity of the manufacturer of the chicken at issue, which had to be resolved before a motion to dismiss could be filed. Through discovery this entity was identified, and the restaurant brought this “new” manufacturer into the case. Once the proper manufacturer was before the court, we moved to dismiss under the innocent seller statute. We satisfied the first prong by establishing that the distributor played no role in the manufacturing, production, testing or individual packaging of the chicken. Its only role was distributing chicken to the restaurant. While plaintiff asserted various product liability claims against the distributor, all were based solely upon its status as a seller. The second prong was satisfied because two defendants were before the court from whom total recovery could be had, the restaurant and the proper manufacturer. We anchored this argument to the declaration page of the restaurant’s commercial general liability policy and the Hold Harmless Agreement between the manufacturer and the distributor. Under this agreement, the manufacturer had contractually agreed to maintain insurance coverage for liability claims, including product liability claims for both the manufacturer and the distributor.

Finding both prongs of the innocent seller statute satisfied, the court entered an order dismissing the distributor from the case.