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July 2021
Welcome to readers of Making the Connection!   
In this issue, you will find: 
  • In Focus : Should we blue-pencil the blue pencil rule in the non-compete context?
  • Question of the Month, about the proper timing of mediation
  • Case on Point, discussing antitrust scrutiny of trademark settlement agreements
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Should we blue-pencil the blue pencil rule in the non-compete context?
Although many states limit the enforceability of overly broad non-compete agreements and other restrictive covenants in employee agreements, many employers continue to require employees to sign them. There are several reasons for this:
Applicants or employees may not realize the provisions are overly broad, unreasonable or otherwise unenforceable;
Employees may not have the leverage to negotiate the terms of non-competes; and
Employers know that courts have discretion to "blue pencil" or narrow the terms of overly broad provisions rather than refuse to enforce them.

Occasionally, though, courts refuse to blue pencil non-compete agreements, finding bad faith or anti-competitive intent on the part of an employer.  Recently, President Biden has urged the Federal Trade Commission to pass a rule to eliminate the applicability of the blue pencil rule in the non-compete context to promote labor mobility. 
Question of the Month
This feature answers a reader's question. Please submit proposed questions to
Q: Is discovery necessary before parties can mediate?

A: The need for discovery to obtain relevant information is frequently cited by counsel as a reason not to mediate, or to delay mediation. However, a mediator can facilitate a discussion between the parties as to what information or documents need to be exchanged informally to allow the parties to participate meaningfully in settlement discussions.
Case On Point
In this month's case, the court considers the antitrust implications of trademark settlement agreements.
1-800 Contacts, Inc. v. Federal Trade Commission
(U.S. Ct. of App. for the 2d Cir. 2021)

Plaintiff is the leading online vendor of contact lenses. To compete, other online vendors purchased the rights to have their advertisements appear when customers conducted searches that included plaintiff's trademarks.  Plaintiff objected, sent cease and desist letters, and entered into settlement agreements in which the other vendors agreed not to use plaintiff's trademarks to promote their own products.  The Federal Trade Commission found that such agreements violated the antitrust laws, and plaintiff sought judicial review.

The Court of Appeals reversed, finding that trademarks and agreements protecting them from infringement are inherently pro-competitive.  The Court also found that the challenged agreements were no broader than necessary to protect the trademarks.  For example, competing vendors could still purchase at auction the rights to have their ads appear when certain generic terms such as "contacts" or "contact lenses" were used by consumers in internet searches.
At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances.  At the Podium events are listed on the calendar page of my website. A listing of available presentations and workshops is also posted.   To book me as a speaker or facilitator at your next company, client or association function, contact me at    
  • On September 29, 2021, from 10:45 to 12:15 p.m.,  I will be a presenter at a session on Overcoming Challenges in Virtual Mediation at the 2021 Annual Conference of the Association for Conflict Resolution. Visit for information and registration.

  • I was recently accepted onto the Nassau County Roster of Commercial Division Mediators.
Client Corner
Client Corner features client announcements and events of potential interest to readers. Some Client Corner events are also listed on the calendar page of my website.    

  • On July 9, 2021, Dr. Marc Miller of MLM Coaching and Consulting, LLC spoke to the Health & Business Alliance on The Importance of Psychological Safety in the Workplace (and in Life).

  • Moxxie Network will host a Midday with Moxxie-East End networking luncheon on July 16, 2021 from noon to 2:00 p.m.  Visit for information and registration.

80 Orville Drive, Suite 100 | Bohemia, NY 11716
© 2021, Lisa Renee Pomerantz. All rights reserved.

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