Bought and Sold Judges
By 
This is how Republicans make sure their corporate masters are taken care of.
We all know the drill by now: A federal agency finalizes a rule to make people’s lives a bit better, a business gets offended because the rule might slightly eat into their record profits, and the Chamber of Commerce files a lawsuit in Texas, automatically drawing a reliably conservative judge. It looks like we’re now going to have to add a part four to this pattern: The judge holds stocks in companies with a material interest in the rule.
Meet Judge J. Campbell Barker, a Donald Trump appointee who is presiding over the Chamber’s challenge to the Federal Trade Commission’s ban on noncompete agreements. The watchdog group Accountable.US revealed yesterday that Barker, as of his most recent financial disclosure form, which covers up to the end of 2022, owns as much as $665,000 in the stock of three companies that regularly use noncompetes to prevent employees from leaving for competitors.
This includes up to $65,000 in Amazon, which has routinely sued to enforce its noncompete agreements in the past; between $250,000 and $500,000 in Apple, which despite a no-poaching scandal when Steve Jobs was CEO continues to attack employees for breaking noncompete agreements; and between $50,000 and $100,000 in IBM, a board member of the Chamber of Commerce, which has also attempted to sue former employees for leaving for rivals.
Many of the Amazon, Apple, and IBM noncompete cases involved personnel whose agreements would likely still be enforceable under the FTC’s ban, as noncompetes for senior executives are grandfathered in. However, new senior executives would not have to sign noncompete agreements. The FTC ban still allows for litigation over the deliberate release of confidential information to competing firms, under trade secrets laws.
The Chamber of Commerce’s noncompete case is currently on hold because of the “first to file” rule. Ryan LLC, a tax services company run by a former tax adviser to Donald Trump, filed its challenge to the noncompete ban hours before the Chamber. Ryan LLC may or may not be a member of the Chamber, which would make consolidating the cases more likely. When Judge Barker asked Ryan whether they have membership in the Chamber, the company “refuse[d] to disclose” that information to the judge, according to a court filing.
After the Ryan case is adjudicated, it is expected that the Chamber’s case will resume, with Judge Barker as the presiding judge. “The corporate-funded U.S. Chamber is counting on Barker not to recuse despite his clear conflicts of interest,” said Liz Zelnick of Accountable.US. “It’s all part of the Chamber’s longtime legal strategy of venue shopping industry lawsuits in courtrooms of least resistance.”
Judge Barker’s financial disclosure is a case study in why judges should maybe not be allowed to own individual stocks. His holdings are not limited to Amazon, Apple, and IBM, but also include stock in AbbVie, American Electric Power, Caterpillar, CenterPoint Energy, Chevron, Clorox, Coinbase, Constellation Energy, Costco, Dominion Energy, Duke Energy, Entergy, ExxonMobil, FirstEnergy, International Paper, Johnson & Johnson, Kraft Heinz, Lockheed Martin, McDonald’s, Merck, Occidental Petroleum, Pfizer, Procter & Gamble, Royal Dutch Shell, Schlumberger, Southern Company, Target, Texas Instruments, and Walmart. These are held in five different brokerage accounts; in some cases, Barker holds stock in the same company in multiple accounts.
Chevron, Entergy, FirstEnergy, ExxonMobil, Royal Dutch Shell, Southern Company, and Texas Instruments have all disclosed in the recent past that they are members of the Chamber of Commerce, the plaintiff in the case.
The New Gilded Age, baby!