Benjamin Dryden on State Actions to Address Noncompete Issue in Health Care Settings

Foley & Lardner LLP partner Benjamin Dryden addressed state-level approaches to noncompete clauses among medical employers in DukeHealth’s Clinical Practice Today article, “States Take Lead on Changing Noncompete Rules.”

“States have the power to regulate employment practices within their borders,” said Dryden, vice chair of Foley’s Antitrust & Competition Practice. “If I’m a medical employer, that’s where I would be focused: activity at the state level.”

He recommended other tools medical employers can deploy aside from noncompetes, depending on the local competitive landscape and medical specialty, including nonsolicitation and nondisclosure agreements and fixed-duration contracts.

Dryden observed that a key reason the U.S. Federal Trade Commission pursued a federal rule was to tie together the existing patchwork of state laws. As health care providers and patients cross state lines, he said, “It’s arguably not ideal if your legal rights fundamentally change from one state to another.”

“But the counterargument is that one size does not fit all, and states are being very thoughtful in how they draw these lines,” Dryden added.