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November 2025 Welcome Welcome to readers of Making the Connection!      In this issue, you will find:  In Focus : New Antitrust Guidance for Employee Agreements Question of the Month, answering a reader's inquiry about mediation confidentiality Case on Point, discussing standing to oppose a trademark registration At the Podium, listing my speaking engagements and public appearances Client Corner, spotlighting client events and announcements In Focus New Antitrust Guidance for Employee Agreements There has been persistent concern that non-compete agreements and other restrictive covenants have limited employee mobility and career advancement.  During the Biden administration, the Federal Trade Commission attempted to address this problem by enacting a rule banning most non-compete agreements.  Implementation of the rule was judicially enjoined, and the current administration has taken a different approach.  In January of 2025, the FTC and the Department of Justice withdrew their opposition to the injunction, and issued Antitrust Guidelines for Business Activities Affecting Workers   replacing earlier guidelines issued in 2016. These guidelines, which apply to employee and independent contractor agreements,  suggest a case-by-case approach to evaluating such restrictive covenants under the antitrust laws. They specifically address:  "Agreements between companies not to recruit, solicit, or hire workers, or to fix wages or terms of employment";  "Agreements in the franchise context not to poach, hire, or solicit employees of the franchisor or franchisees";  The exchange of  "competitively sensitive information [by] companies that compete for workers"; "Employment agreements that restrict workers’ freedom to leave their job" for a competitor or to start their own business;  and  Other restrictive provisions such as "overly broad non-disclosure agreements, training repayment agreement provisions, non-solicitation agreements, and exit fee or liquidated damages provisions." The FTC has initiated enforcement efforts in the healthcare and healthcare staffing markets, where restrictive covenants and reduce the availability of healthcare services to consumers.  Question of the Month This month's question was posed by a reader:  Q: Do arbitrators learn what occurred in unsuccessful mediations in cases they hear? A: As a general matter, mediations are confidential and statements made or actions taken in mediation are not admissible evidence in an arbitration or court trial. That is to encourage parties to be candid and forthcoming. However, on occasion, a neutral may be asked to serve as both the mediator and arbitrator, and then would be aware of what was said and done in the mediation.  Also, factual information that may be disclosed in a mediation does not become immunized from disclosure through discovery or other means and can be admitted into evidence at a trial or hearing.  Case On Point Curtin v. United Trademark Holdings, Inc.  (U.S. App. Ct. for the Fed. Cir. 2025)   United Trademark Holdings, a toy and doll manufacturer, filed a trademark registration application for the term "Rapunzel". Plaintiff, a doll collector, filed an opposition, claiming, among other things,  that the term was generic, and would reduce the supply of dolls inspired by the famous fairy tale. The Trademark Trial and Appeal Board ruled that plaintiff did not have standing to challenge the registration because she could not allege any commercial injury.  The Court of Appeals upheld this ruling,  on the grounds that only parties falling within the "zone of interests" protected by the Lanham Act could file such an opposition. In an earlier decision, the Supreme Court held that “to come within the zone of interests  . . . a plaintiff must allege an injury to a commercial interest in reputation or sales." As a consumer, Curtin did not meet the applicable criteria.  At the Podium This is a listing of speaking engagements, workshops, events and other public appearances. To book me as a speaker or facilitator at your next company, client or association function, contact me at lisa@lisapom.com.          On November 22, 2025, I will be a guest speaker at Professor Murad Gafarov's class on Alternative Dispute Resolution at Texas Wesleyan University.    Client Corner Client Corner features client announcements and events of potential interest to readers.  Clients are encouraged to submit items for listing in future issues to lisa@lisapom.com. Some Client Corner events are also listed on the calendar page of my website.     On December 19, 2025, Moxxie Network is hosting a Midday with Moxxie networking lunch from noon to 2pm at Hotel Indigo in Riverhead, New York. Click here for more information.  © 2025, Lisa Renee Pomerantz. All rights reserved.

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