In a (non)definitive survey of writing instruments, big-law attorney turned solo employer counsel Michelle Strowhiro reveals her pick for the best pen for lawyers.
Then we turn to the U.S. District Court of Texas ruling in Ryan LLC v. FTC, blocking an FTC rule that would ban non-competes. This rule would eliminate trade restraints already banned in California. What comes next?
Michelle Strowhiro’s biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Announcer 0:03
welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone. I am Jeff Lewis
Tim Kowal 0:18
and I'm Tim Kowal certified appellate specialist, Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast helpful, as always, we appreciate when you refer us to a colleague, yeah. If you like being surprised in your legal practice, go ahead and turn your volume off. All right, Jeff, we're pleased to to welcome Michelle strahiero to the show today, and I made the faux pas before a hidden record to suggest that maybe we're going to be talking about the lighter side of practice, but you said that. No, no, no, pen choice, writing implement choice is deadly serious business. So we're going to get into that today with Michelle, who is a an employer lawyer. She provides trusted strategic counsel to companies across the United States in all aspects of employment law compliance. Michelle recently left big law to open her own firm. She is very prominent on X, formerly known as Twitter. She is a refugee from litigation and now serves as outside in house counsel. She and so we look forward to her insights on what employers and their counsel are looking for when, when hiring litigators like us. So Michelle, welcome to the podcast. Thanks for being with us.
Michelle Strowhiro 1:28
Thank you so much. Tim, Thanks, Jeff. I'm so glad to be here. I'm having a little bit of imposter syndrome not being an appellate lawyer myself, but I'll get over that.
Tim Kowal 1:35
Yeah, we all, we all get over that being on this podcast. We're all imposters here, so you're in good company before Michelle. Before we get to substantive questions like, what kind of pin is best, or cap or click, want to ask you a few lighter side questions, what TV or movie lawyer do you most identify with? Or if you don't identify with one, which TV movie lawyer would you hire in one of your cases or your client's cases?
Michelle Strowhiro 2:04
Ooh, great question. I think if I could pick two, because I'm going to be a little shifty here, right? So think first and foremost Elle Woods from Legally Blonde. As my career has progressed, I've come more and more into myself and my feminine side of practicing law, and I think Elwood is a great example of someone who is very much herself but is also an absolute badass. And then also, Olivia Pope is one of my favorites from scandal, and she, I think she's a former lawyer, so I don't think she's actually actively lawyering when she's fixing that. Thank you. Yes, I do. I try to see myself a bit as a fixer and helping clients fix problems. So, yeah, I try to evoke Olivia Pope from time to time. Olivia
Tim Kowal 2:45
Pope, yeah, the fixer, the fixer version. I like that too. Sometimes I think of this was a Harvey Keitel character from Pulp Fiction. You know, Mr. Wolf. I fix problems, gentlemen, if you didn't go to law school, what do you think you'd be doing today?
Michelle Strowhiro 3:02
Oh my gosh. I think you know that when I was in college, I was deciding between two career paths, and I ultimately went with law school, but the other one that was really pulling at me was teaching. So I think if I hadn't gone to law school and become a lawyer, I would have loved to be a teacher of some sort. I was an English major, maybe an English teacher, but I think, you know, even in practice, I feel like you get to teach a little bit as you get a little more senior, and you're working with junior attorneys, and so that's been something that I've loved to do throughout my career.
Tim Kowal 3:31
Yeah, I think that's that may be a sign of what makes a good attorney, especially from the standpoint of a client, because if you, if you don't have the teacher in you as a as an attorney, and willing to explain your reasons and explain what you're doing to the client, instead of taking the attitude, you know, how do you not know this? Or don't bother me, just sit back and let me do it. You know, you're not going to be really doing a service to the client who needs to be assured because you can't guarantee anything no matter what you do. So you might as well let the let the client in on the secret of what you're at least trying to accomplish, so they have some assurance no matter what happens.
Michelle Strowhiro 4:06
I totally agree, and I think that the same is true of being a litigator and a brief writer, right? You have to be able to explain your client's story and your client's case in a easy to understand, succinct way for a judge who may have never seen the case before than reading your brief,
Tim Kowal 4:21
right? Yep, yes, it's bringing, bringing someone along to the conclusion, can't just ram it down their throat. Absolutely, trust me, I've tried. We're going to talk a little bit about your your tech stack in your new firm, but more generally, just on legal tech. Which statement Do you better identify with? We're in a legal tech Renaissance, or we're in a legal tech deluge. There's too much leave me alone with your legal tech Oh, wow.
Michelle Strowhiro 4:49
Well, gosh. I mean, it's kind of both. I hate to keep saying two things at once, but it really is both. I mean, there, I can't even count the number of different AI and legal Tech. The companies that are out there, and I think so far, there's been a lot of misfires. I know we're seeing a lot of that in the course with the unfortunate filings of cases that don't exist, but I think we're going to get there eventually. I think the Renaissance is at the very early stages, so I have some some optimism that some of these companies are going to break through and level up and start to show some value. And I think I've heard a lot of solo and small firm practitioners already are using some of these different softwares and different tech to summarize contracts or do things that, of course, attorneys still have to put their eyes on and make sure are correct, but it's things that you might have typically assigned, you know, a paralegal or first year associate, to do before the partner would review it, and now it's something that AI might be able to get a really good head start on. And so I think that's going to be huge for the legal industry. It's an interesting development too, because so much of our industry is billable hour related. So of course, if you make things more efficient. That kind of shakes things up a bit. But I think it's going to be a win for clients eventually, because clients are going to be able to have cost savings on these things that are otherwise a first year associate at a very high rate might have spent several hours doing, yeah, it's
Jeff Lewis 6:17
gonna be a win for clients and for agile lawyers who can ride the wave. I mean, I think about the shift. I'm old enough to remember when we used to do paper filings, and we didn't have PDF filings. You have to send messengers down to the courthouse, and the shift to PDF and electronic filings helped, you know, even the playing field between smaller firms and bigger firms and that kind of thing. And I think we're going to see a similar shift with this leveraging of AI in terms of manpower at law firms. And someone
Tim Kowal 6:43
shared with me a good line that AI will not replace humans, but humans who use AI will replace humans who don't use AI. I
Michelle Strowhiro 6:53
like that. I like that. Yeah, it's definitely a tool. Wrote that.
Tim Kowal 6:59
All right, Jeff, I know you're chomping at the bit to start talking about writing implements, so I'm gonna, I'm gonna unleash you and let you do it. Well, yeah,
Jeff Lewis 7:07
second only to the debate about whether there should be two spaces or one after a period. You know, on Twitter, people rage about the appropriate pen use in legal practice, and tell us, how did you first get interested in pen selection and posting about it on social media and explain what the hashtag influencer means?
Tim Kowal 7:29
And you get many questions, what is a pen
Michelle Strowhiro 7:33
Well, apparently, pen testing has multiple reason, multiple definitions as well, which was new to me. But let me back up first, because I wasn't even on Twitter, using Twitter actively until COVID, right? So the only reason I joined Twitter and started using it was because I was as an employment lawyer. I was advising clients about COVID 19 laws, and as I'm sure you both, followed very closely as well all of the appeals of all of the different, you know, legal battles of the COVID 19 vaccination mandates and that were, you know, going on at the time. And the best place to get that breaking news was Twitter now x and so as part of my research, really, I joined Twitter just to follow that news. And then little by little, started to tweet out my own things, mostly COVID related. And then maybe, you know, my inner monolog, as we all tend to do. And one of the things that I happened to decide to tweet was about pens, because I used to be the kind of person that, you know, my go to pen was whatever the free click pen was that I got at whatever conference I had been to, or whatever hotel I had stayed at. That was my go to pen. And I still love a good, efficient, cheap, you know, swag pen. Love it, right? But my pens had all run out of ink at the exact same time, which is never happened before. And I thought to myself, You know what? I should figure out which pen I like the best, because then I'll just know that's the my go to pen. I'll always order that one, and I will forever have a favorite pen.
Tim Kowal 9:09
So the universe asked you that question when it made all your pens dry out at once, exactly
Michelle Strowhiro 9:14
right? So, so I took to Twitter, not realizing how incredibly popular and controversial and you know, passionate people were going to be about what their favorite pens were. I asked people, you know, hey, what? What pen do you like best? To get a few examples. And then I thought I'd just try a few out and see which one I like best. So lo and behold, I think there were 17 or 18 recommendations that came out of hundreds of responses. And then myself being overly thorough, in many cases, decided to go ahead and make a whole thing of it. So tried to be a
Jeff Lewis 9:48
madness. Yes, there was no bracket for pence. There
Michelle Strowhiro 9:52
was no bracket because I wasn't, you know, there was no slotting of of seeds beforehand. But there were certainly some. Favorites going in one of which was the Pilot g2 huge favorite, the Sharpie s gel, also a huge favorite. And both are excellent, by the way, it's gonna
Tim Kowal 10:11
be like a rotten tomatoes thing where you have, like the Critics Choice and the Fan Choice.
Michelle Strowhiro 10:15
I think that's right. I think that's right because I, you know, I tested them all out, I took pictures, and I did different things. I wrote on post its I tried to smudge them to see if they would smudge, because I am a left handed individual. Smudginess is it's very important to me that it not be smudgy. And the overall winner, esthetics, you know, the pen feel and the hand on the paper was the Office Depot, home brand, the tool, the tool, gel pen. My personal favorite is the point seven all the Thompson point five and and one point now it Oh, Jeff's holding up the blue one. I'm holding up the pink one right now. So yeah, that's been my favorite. And I don't know if just by ultimate persuasion, but I think I've gotten a lot of law Twitter to jump on board as well,
Tim Kowal 11:03
possibly be that a generic store brand would come out on top of all of these nudie pen choices, you know? I
Michelle Strowhiro 11:11
mean, first and foremost, it is their house brand. But it's, I wouldn't say it's like generic, bottom of the line, right? It comes in some fancy, pretty colors comes in the rainbow pack as well, and it also kind of follows now, now that I'm thinking back at it, you know, my original favorite pens were, in fact, the cheap, throwaway swag pens. These, I wouldn't say, are cheap, but they are, I think, worth it, so I highly recommend to anyone I meet. I have five of them on me at any given time. I'm giving them away all the time. I'm not sponsored, but I'm just a big fan, so not yet huge advocate of tool.
Tim Kowal 11:48
And I noticed it's a clicks pin and not a cow pin, yes.
Michelle Strowhiro 11:52
So my, my personal preference, has always been a click. I would lose a cap or, you know, it's just so much quicker to have the click. And I, I'm a former musician, I suppose, and it's still, still a hobby of mine, but I was in the UCLA marching band percussionist. My husband is a professional percussionist, so the sound of the click is also incredibly important to me. Yeah, it can't sound bad. It has to, you know, have a good, firm click feel as well. And so that's something I tested. Kids
Tim Kowal 12:25
like to click things and make noise. It's not as satisfying when they do it. Yeah, okay, Jeff, you're scowling at the at the click Pin recommendation. I
Jeff Lewis 12:36
do not like the click then. So that's just personally me. I like, by the way, I like props. So you're in court and you need a moment to gather your thoughts. You take off your glasses, or you, I don't know, take the cap off a pen, put it on me back decisively, you've bought yourself three seconds of time in front of the court to gather your thoughts. This
Michelle Strowhiro 12:54
is not something I considered, but I should have taken that under under consideration as well.
Tim Kowal 12:59
I would have to put a string. I would have to put a string to connect the cap to the pin, because, come on, Tim, how
Jeff Lewis 13:06
many caps Have you really lost over your legal career? How many caps Have you really lost? Come on, it doesn't go that far.
Tim Kowal 13:14
Come on. I have to think about it, though. It's using a valuable brain cells. The
Jeff Lewis 13:17
other thing I'll just say is I'm not generally a big fan of the gel pens you've been talking about only because I write a very thin journaling paper. I'm going to butcher the name habanachi planners. It's like, think about when they used to be phone books, that kind of thin paper and bleed through to the other side. It's very important for me. So my selection is the and I'm going to butcher this name, the thing, tie you on. It's a gel, but it's quick, dry, point five millimeter. That's my go to bed. But it does have the handicap of this, of this cap, which is okay,
Michelle Strowhiro 13:50
but Jeff, you So you told me about this yesterday when we were emailing. I did a little research. It does also come in a click, and it does also come in a point seven. So I have ordered both four versions, the capped point five, and I have also ordered the click point seven, and I'm going to try them out.
Jeff Lewis 14:06
I demand to do a Twitter space with you, and you will have a write off, uh, when they arrive. Okay,
Tim Kowal 14:12
I love it. You're on Have you have to, you have to be able to adjust for penmanship. I think I seen your penmanship. Yeah.
Jeff Lewis 14:19
No bueno. That's what we're doing, Twitter spaces and not a video. You can hear it. You won't be able to see it.
Tim Kowal 14:26
All right. Michelle, let's, let's move on to are we ready to move on to legal tech? Yeah,
Jeff Lewis 14:30
I've got it all out,
Tim Kowal 14:31
I think. All right, Michelle, so you moved from big law to open up your own shop. And we talked about, you know, we're in something of a tech Renaissance. There's a ton of legal tech available. What is your tech stack? What is your go to technology that you rely on a daily and weekly basis?
Michelle Strowhiro 14:48
Yeah, so I use a regular PC. I wouldn't even be able to tell you what brand it is, but it's PC, and I use Clio. Clio has been amazing for me. I heard of a couple. The different kind of all inclusive management systems. Clio has been phenomenal. It has document story, it has time entry, it has note taking, address book. It does invoices for you, everything you could expect or imagine or need as a solo practitioner. It's all there, and their help support is 24/7 too, so also not sponsored by Clio, but they've been wonderful, and that's been my, my saving grace for being a solo practitioner. Gosh, other tech that I use, I'm, I have, I've, I'm using Lexus. It's hard for me to say, but I was a West log early.
Jeff Lewis 15:39
Yeah, I promise you I'm not a stalker. But I noticed on West Law, I mean, I noticed on Twitter that you said you're, you're a Westlaw person, and then you've got turned to the dark side. I'm fascinated, because I've been using Westlaw since 1993 Yeah, tell us about going to the dark side.
Michelle Strowhiro 15:55
Yeah. So, I mean, I have to go all the way back to law school. I was a Westlaw student representative. So I am a little biased, right? And violated
Tim Kowal 16:04
some kind of ancient pact.
Michelle Strowhiro 16:06
I think I know I feel bad about it. I am a Westlaw I was a Westlaw student rep. And, you know, for most of my legal career, I've had access to both, but I've tended to go, you know, primarily with Westlaw. For all of my case law, research, practical law, just all of my secondary research, you know. So I assumed when I went solo, I probably just picked the same up, but I did a comparison. And Westlaw continues to be amazing. Love it, but Lexus had a broader resource for a bit more efficient of a price. And I personally do not only employment law in in counseling clients and employers, but I also practice employment law in the space of M A so I do employment diligence for you know, buyers of companies look under the hood and see what they're buying, if they're buying a lawsuit and that kind of thing. So one of the great pros of the Lexus platform is that they provide for their practical guidance, which is kind of the corollary to practical law. They provide you with all of the different topics with less law. I was only going to get one or the other, so I was really happy to be able to go with Lexus and have all of those. But I think, you know, both resources were excellent. I just found that they were pretty comparable. So ultimately, it came down to what was broader, and then price.
Tim Kowal 17:26
I moved to Lexus, also when I started my firm a year ago. And it was, I think, what I agree with everything you said, Michelle, I thought that the the basic packages were pretty were pretty comparable. Lexus had a better price, and they had aI going for it at the time, Westlaw was a bit behind, until they shelled out some $600 million to buy case text. And now I, I, I've been a long time user of case text, and so I've kept up my subscription to case text since then. So I have, I have both, and I actually have come to prefer the AI. I still prefer the AI, co counsel product of case text better than the Lexus version, but, but otherwise, aside from that, they're comparable products. But AI is, is becoming, you know, the deciding factor in a lot of tech decisions, absolutely? Yeah, big time,
Michelle Strowhiro 18:14
absolutely. So those are my mains. I, you know, I saw, I'm using DocuSign, I'm using Adobe Acrobat. What else for, like contact management. Contact Management, I use Cleo, yeah, and note taking, also Google and Google with note taking. I loved, I love to use OneNote for my note taking. It's what I always use in practice at my big law gig, and so it's just been really seamless, to try to kind of mirror everything I was already using in my solo practice. So that's why I went and went ahead and started using DocuSign, and I'm also using Canva for social media website, the occasional design of my children's birthday invitations, but that's non practice related, but yeah, Canva as well.
Jeff Lewis 19:06
Hey, let's talk about social media, Canva and the fact that you're a robot. How is it that you are able to practice law, crochet or knit? I don't know the difference, Cook and Talk about peds and do all that in 24 hours a day. Are you a robot?
Michelle Strowhiro 19:21
Yes, I am. You've caught me
Jeff Lewis 19:24
find the time to do all that balance work, even you were doing this back in big law days.
Michelle Strowhiro 19:27
Yeah, yeah, you know, gosh, big law. I grew up in big law, so I as a summer associate, you know, I went to Winston and straw, and I was there for a few years. I followed my career long mentor to DLA Piper, and then I was there for a few years, and then my whole employment group ended up going over to McDermott mill and Emory, which is where I ended my big law career. I was there for about six years, and throughout my entire 14 ish big law years, I realized really quick, especially after having kids, that I was really going to have. Find some balance to make it work. Because, you know, that's the kind of job that will really it's designed to take as much of you as you're willing to give, right? And the more you give, the better, the better off you're going to be. You're going to build more hours, you're going to hit your targets, you're going to get that bonus. So the incentives are there to really just work, work, work, and that's it. But for me, I wanted to make sure that I had carved out some time for myself, and had carved out certainly, time for my kids. And so it's really important to me to try to build up those walls. And really it's a daily exercise and discipline to walk away from the computer at 10 instead of 11, or to walk away from the computer and have dinner with the family and then go back instead of just sitting there and keeping on working. So similarly, I tried to wall off my weekends as good as I could. You know, again, with technology, you can be sitting on the couch with your kids and checking your phone for emails at the same time and crocheting as well. Crochet. I crochet. I don't knit, but I did try to knit a few years ago. Didn't go so the crochet, though, that's been amazing. Oh yeah. So knitting is basically two long needles. Crochet is one hook. So maybe that's why it's a little easier, I guess because you have the one hook. So, yeah, but it's, it's always been really important to me to have something else going on that wasn't just work. And so I've, I've worked really hard to do that. I think, you know, a big part of my move this year to going solo has been to carve out even more time for myself and my family and hobbies and other things that I can I realized, you know, I could have a great practice and work with my amazing clients, but also have more time, and we just have this one life to live, right? So that's why I ended up going solo this year. And
Tim Kowal 21:45
how's it gone so far? What are, what have been the challenges and opening the firm? And, yeah, what's the transition been like?
Michelle Strowhiro 21:51
It's actually been knock wood. It's been amazing, and it's been pretty seamless. I mean, at first, you know, there's a lot of start up with engagement letters and reaching out and setting things up, and I'm now my own IT person, which is not great, but it's working out okay. So after I got over all of those kind of initial setup hurdles, I think it's been really, really smooth. My My former firm, McDermott, has been incredibly supportive, and they were super, super supportive as I was making my way through my decision about whether to leave, and then after I decided to do that, they've been supportive. I'm still working with them on a few projects, and so that's been wonderful. And it's been, you know, it's been, I would say, more seamless than I have expected, I think largely because of the way that my practice evolved over the years. I I litigated employment cases for about a decade before I kind of started shifting my career and my my practice to be more advisory in nature. So in the last several years, I've, I've, I litigate from time to time, still, but largely I'm providing advice and counsel and proactive guidance to clients and employers. So that is, as it turns out, is so much simpler right to pick up and move and be your own solo practitioner, doing advice and counsel than had I had a practice that was largely litigation, where I would have needed a paralegal and Associates and and other folks to help support so it's just kind of lucky that what I've kind of gravitated toward really was conducive to solo practice.
Tim Kowal 23:31
Yeah, so from your perspective now, as Advisory Council for employers and businesses, do you have any advice for the trial attorneys and litigators in our audience, now that you're a refugee from from the litigation world, what advice do you have to litigators, trial attorneys who are looking to pick up business from from your clients or other businesses like your clients. What do you advise your clients when you know, making the choice to hire a trial attorney for a legal dispute, when that becomes necessary, yeah,
Michelle Strowhiro 24:06
well, it's so interesting, because in employment law, a lot of a lot of clients, a lot of companies these days have employment practices insurance, so liability insurance, so for certain types of disputes, you know, wrongful termination, discrimination, harassment cases, a lot of employers are working with their insurance companies to be assigned counsel. So some some firms I know are very big on that insurance work. And I think there's a lot of work there. So there's certainly that aspect, I think, when it comes to wage and hour cases, class actions, things that aren't typically covered by insurance. What I find clients are looking for are counsel that have experience in that area, ideally in their industry, although, frankly, a lot of the time with employment law, it's industry agnostic, but I think it gives clients comfort to know that. The attorneys they're working with know their industry, or going to be able to learn it really quick and and I think, frankly, also where clients have been really pleased with the litigation support is where they have attorneys that are just almost overly communicative with them, right? They want to, they want to know the status of their case. They want to know all the different options. They don't want to have to follow up with their attorneys. So I think that's where litigators make a huge difference, is by being proactive and reaching out and keeping clients updated. All
Tim Kowal 25:31
right. Great. Well, Michelle, do you have any other advice or comments that you want to share with our audience today? Or Jeff, did you have any other questions that we didn't get to? Well,
Jeff Lewis 25:42
I did want to talk a little bit of substance about employment law if we could. Yeah,
Michelle Strowhiro 25:46
let's do
Jeff Lewis 25:49
the FTC issued a big rule regarding non competes, and then some court issued a nationwide ruling about that rule. And I know California has a very specific set of rules regarding non competes. And can you walk us through what the FTC did and what the court did, and why anybody California should care?
Michelle Strowhiro 26:06
Yeah, let's do it. Oh my gosh. So I felt a little deja vu to be, to be real honest with you, because it reminded me a lot of a few years ago when we saw the COVID 19 litigation, the vaccine or testing mandates that went through the courts and were ultimately blocked, the FTC last year in 2023 I believe, issued a rule that was ultimately finalized this year in 2024 that essentially said nationwide, non competes will not be enforceable, so with very limited exceptions, uh, sale of a business, for example, there, there would still be some exceptions for sellers of businesses to enter into non competes. But by and large, non competes were going to be rendered unenforceable nationwide. Kind of all law California, right? Because California, we're used to this stuff. No surprise here, you're not allowed to have non competes out here in California, except for the sale of a business or a couple of other exceptions. So not a huge shift for the California based companies. But most other states still allow some form of non compete, as long as it's reasonable. Although we are seeing in the last five seven years, a lot of states have implemented new state laws that have restricted the ability to enter into non competes in those states as well. So for example, we've seen things like salary requirements. You can't enter into a non compete if somebody is earning below a certain threshold. We've seen other requirements that carve out certain industries, like you can't enter into a non compete with a doctor. And then we've also seen some states say, yeah, you can have a non compete, but you can't get injunctive relief. You can only get monetary damages. So a lot of different nuances there, but the FTC was trying to shortcut everything and say, Actually, now everyone's California, right? So of course, that one didn't go over super well with a lot of different companies in the Chamber of Commerce. So there were a few different lawsuits filed. And ultimately, as I think a lot of us expected, one of the course, think it was in Texas issued a nationwide ban or a nationwide block on the rule. So the FTC rule, which was supposed to take effect earlier this month in September 2024 was blocked from taking effect. They could still appeal, and I'm sure y'all would cover that really well, but I think TBD right. I think probably going to depend at least in part on the election and how that goes, and if they, if they, if they try to appeal it, although, frankly, again, I think I could see the writing on the wall if they tried to appeal it, they get to the Supreme Court on this one, I don't know if y'all are betting men. I would say my guess would be that the Supreme Court would probably fare similarly to what we saw with the COVID 19 rules that you know, the FTC rule is pretty broad. It didn't have different exceptions for different, you know, industries or things like that. And I think at least from from the kind of broad Vax or test mandate that got struck down for similar reasons, I think probably that would have been seen as a bit too broad by the Supreme Court. I
Tim Kowal 29:16
wonder if the Chevron deference issue plays any factor in the does the FTC interpretation of its own authority play into, play into the that rule at all.
Michelle Strowhiro 29:28
I don't know. Yeah, you know, it's, it's a good question. I think historically, antitrust issues have been kind of outside of the general realm of the deference. But it's, it's certainly, I think helps to show the kind of trend of the court, and I think even the Texas Court made a reference to it in its ultimate decision to block the FTC rule.
Tim Kowal 29:56
Yeah, and as we know, in California, there's already a very strong. Public policy against non compete. So does the was that? Was that FTC rule that obviously that was going in the same trajectory as the California policy? Correct? Yes,
Michelle Strowhiro 30:13
it was almost identical to California's law, right? Essentially, the general rule would have been no non competes whatsoever. What? And the only exceptions would have been, you know, one for the sale of a business, or two for pre existing non competes that existed before the ban, for certain very high level executives. So really, the CEO, the president of a company, and that was about it. So there were a couple of exceptions there under the FTCs rule. Think you know, California even out here, we continue to layer on restrictions on non competes, even in 2024 we had a couple of laws come out this year that made it even more dangerous for California employers and California employees to consider entering into non competes. You know, we've for for a long time, California has had this public policy and these laws that were anti non compete, but a lot of companies and employers have decided to utilize an exception to California's rule. California has a Labor Code Section 925, that essentially says you can't negotiate. You can't have a non California choice of law and employment agreement. But there's an exception. There's an exception if the employee has counsel. So especially with executives, for a long time, executives, even who are based in California, have worked with counsel and with employers to negotiate that their employment agreements would be governed by non California choice of law, and therefore have your standard, non compete, non solicit suite of restrictions in it with California's new laws this year, it makes it even more challenging and a little dangerous to have those provisions, because now there are, you know, There's additional penalties for entering into these agreements with California based workers.
Jeff Lewis 32:06
Interesting, I never
Tim Kowal 32:08
knew that. Yeah, I suppose there would have been advantages to having an FTC rule that was the same as the California policy for companies that are nationwide. Oh my gosh, yes, different rules in different states?
Michelle Strowhiro 32:22
Yeah. I mean, it's kind of a yes and a no there, right, Tim, because I think on the one hand, companies do see a lot of benefits in having reasonable non competes, where they're restricting people from going out and competing immediately and stealing all of their clients. But at the same time, it's really challenging for companies that operate in multiple states, to try to have one form that works for all of their employees, for example, right? Or or even to track all the different changes, because every year, there's a half dozen states that change their laws on non compete. So to have one federal rule would have been, you know, it would have been nice for the employment lawyers out there, at least, but, but it's never that easy. So with employment law, so many things are very state by state just kind of comes along with the territory.
Tim Kowal 33:12
Yeah? Well, it continues to be an employer lawyer, employment bill,
Michelle Strowhiro 33:19
an opportunity. That's right, yes, that is correct. Yeah, there's never a shortage of work in employment law. So I always tell law students when they're considering what to specialize in, you know, give employment law look.
Tim Kowal 33:32
That's right, yeah. All right. Jeff, any more follow ups?
Jeff Lewis 33:37
I think, I think we've gotten everything we needed,
Tim Kowal 33:41
yeah? All right. Well, shell thank you so much for joining us and sharing with us about the FTC rule and about writing implement choice and that you don't have to go to the to the snooty model that that Jeff has endorsed. You can just get the what was it the staples brand or Office Depot.
Michelle Strowhiro 34:01
Ooh, it's Office Depot. Office Depot. Oh,
Tim Kowal 34:03
did you compare the staples brand?
Michelle Strowhiro 34:05
I did not try the staples brand. That's a gap in my research.
Tim Kowal 34:12
Yeah, to be continued, then To
Michelle Strowhiro 34:14
be continued. That and Jeff, Jeff's recommendation need to be tried.
Tim Kowal 34:19
That's right, alright. And
Jeff Lewis 34:22
before, before we wrap up, just reminder to our audience and to Michelle if you're interested. On December 10, Tuesday, December 10 at noon, we're going to have kind of a Cal appellate Twitter West Coast meetup for lunch, probably around the Grand Central Market. So mark your calendars. December 10 around noon on Tuesday. Love to meet some of the listeners and fellow appellate Twitter peeps, and bring
Tim Kowal 34:44
your best pen, right? We'll have a pen op. I guess we'll have to have something to write on too. We didn't talk about what kind of paper, what kind of paper is the correct acid free paper to use your office a pen on?
Michelle Strowhiro 34:57
Well, we know Jeff has opinions about this. So I think we gotta go with your paper. Jeff,
Tim Kowal 35:02
okay, yeah, so that's our teaser. That's our teaser. That's why you need to join us on December 10. Okay, so go ahead. Tim, all right, well, thanks for joining us. If you have suggestions for future episodes, please email us at info, at Cal podcast.com, and on our upcoming episodes, look for more tips on how to lay the groundwork for an appeal while preparing for trial and for more tips on writing implements. Yep, see
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