No-poach agreements are adding further uncertainty for company counsel and human resource professionals tasked with navigating the already murky waters of federal and state antitrust laws. Bailey Brauer co-founder Clayton Bailey offered his insights on these agreements in “No-Poach Agreements: Too Many Chefs in the Kitchen?” which appeared in the October 2019 edition of the Dallas Bar Association’s Headnotes newsletter. The article explores the recent guidance, lawsuits, and advocacy by the U.S. Department of Justice, enforcement actions by various states, and lawsuits filed by employees which have “raised as many questions as they have provided answers for determining whether a no-poach agreement is illegal.” “Considering the current uncertainty involving no-poach agreements, employers (particularly in vertically related firms) should review their existing contracts for no-poach clauses and evaluate removing them after seeking advice from antitrust counsel,” Mr. Bailey wrote. “While the DOJ has provided a framework of ‘the right questions to ask in a systematic way’ for preliminarily reviewing no-poach agreements, there is no guarantee that a state AG or judge will view the law similarly.” The full article can be found in the digital edition of the October 2019 edition of Headnotes.
Law firm co-founders find success forging their own path after leaving Big Law behind DALLAS – Bailey Brauer co-founders Clayton Bailey and Alex Brauer are among the “agents of change” in the legal profession singled out by Texas Lawyer magazine to receive the publication’s inaugural Texas Trailblazers recognition. Mr. Bailey and Mr. Brauer were chosen for their leadership in reshaping expectations for legal boutiques in Texas. Unsatisfied with the burdensome constraints of Big Law, the pair walked away from their positions at an international law firm to open their own firm six years ago. From the start, their business model was unwavering. “Our approach is very similar to that of a Big Law litigation or appellate practice, but without the inflexibility that results from overhead demands and far-reaching conflicts,” said Mr. Bailey. “We provide the same level of expertise and sophistication demanded of Big Law, but in a much nimbler fashion.” Former clients immediately took notice, bringing their work to Bailey Brauer. Since then, many more companies and individuals have engaged the six-attorney firm on new high-stakes litigation matters. The legal community too has taken notice, with the firm receiving professional accolades that frequently take other firms more than twice as long to achieve. These individual and firm honors include recognition from Benchmark Litigation, Chambers USA, BTI Consulting Group, The Best Lawyers in America, the National Law Journal, Texas Super Lawyers and D Magazine. “Honors are a tricky thing,” said Mr. Brauer. “Winning them is not something you spend a lot of time trying to accomplish. But when you earn recognition from your peers, that validates that your focus is in the right place. You don’t earn respect without achieving a certain amount of success
As seems to happen during every presidential election cycle, the USDA is again considering another round of proposed regulations under the Packers and Stockyards Act (PSA.) However, explains Bailey Brauer co-founder Clayton Bailey in a recent Meatingplace blog post, additional regulations are not prudent. Meatingplace is the premier news source for the U.S. and Canadian red meat and poultry processing industries. “While government insiders are the only ones who know what the proposed regulations will say, many are hoping the Trump administration continues its cautious approach to restricting how the industry operates,” he wrote in “USDA Should Use Caution When Proposing Meat Industry Rules.” That sentiment is based in large part on the belief that the PSA, as well as state laws, already provide enough safeguards to sufficiently protect contract producers. “Anyone who has worked in the trenches of PSA lawsuits has seen a broad array of issues that arise in the industry. And nearly every legitimate complaint – from animal quality to grower association membership to alleged company misrepresentation – falls within the laws of the state where the grower’s farm is located. “Depending on the facts and where the events occurs, there may be other state law claims available to protect a producer,” according to Mr. Bailey. “The PSA is a different animal. It is an antitrust statute enacted into federal law in 1921 that addresses conduct that harms competition, such as price fixing, group boycotts, or the division of markets.” “Nearly every initial lawsuit filed by a producer asserts a PSA claim along with state claims. And by the end of nearly every case, those claims that have the most legal support usually are state law claims because the PSA does not