Darley Maw

-Represented global manufacturer to design and enhance competition compliance program. -Represented a global shipping company in a DOJ criminal antitrust investigation, including preparing senior employee for a DOJ interview. The investigation concluded without any enforcement action. -Counseled and represented company and corporate executive in pesticide industry in connection with FTC and multidistrict litigation. -Led internal investigation into whistleblower allegations at an international financial institution and provided strategic recommendations based on findings. -Led internal investigation into potential no-poach violations at a national corporation and delivered comprehensive risk assessment with actionable recommendations. -Represented executive in the publishing industry in a DOJ criminal antitrust investigation, resulting in no charges. -Represented a global fashion company in a cross-border DOJ criminal antitrust investigation, resulting in a declination. -Advised a leading quick service restaurant on a multi-faceted risk assessment and the development of a compliance program for its supply chain and distribution services. -Represented a foreign client in a DOJ price fixing investigation. Prior to joining Baker McKenzie, Darley: -Represented an aerospace engineering company in a DOJ "No Poach" investigation. -Represented a start-up health supplement company in a complex commercial dispute in the Central District of California and Southern District of New York. -Represented a foreign logistics company in breach of contract action.

Co-author

Co-author

On January 16, 2025, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) replaced the 2016 Antitrust Guidance for Human Resource Professionals. The new guidelines now titled, Antitrust Guidelines for Business Activities Affecting Workers1, reaffirm the major points of the 2016 guidelines. Wage-fixing and no poach agreements remain illegal and sharing wage information may violate the antitrust laws. However, the new guidelines identify a slew of other agreements and practices that can violate antitrust laws, including franchisee agreements with employment restraints, non-compete clauses, overly broad non-disclosure agreements (NDAs), and other employment restraints. The new guidelines also make clear that they apply to agreements affecting independent contractors including gig workers. The inclusion of independent contractors aligns with the FTC's recent policy statement expanding the antitrust exemption for unions and collective bargaining to independent workers and gig workers.

On January 14, 2025, the Department of Justice (DOJ), Antitrust Division and Department of Labor, Occupational Safety and Health Administration (OSHA) issued a Joint Statement1, asserting that non-disclosure agreements (NDAs) undermine whistleblower protection laws, including the Criminal Antitrust Anti-Retaliation Act (CAARA), when they deter or prevent an employee from coming forward. The Antitrust Division noted they are focused on allowing individuals to report antitrust violations without the fear of retaliation. The Joint Statement also warns against using NDAs as an improper shield to obstruct an investigation, which may result in separate federal criminal violations for companies.

On November 12, 2024, the US Department of Justice Antitrust Division updated its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (ECCP).1 The additions include guidance such as using “managers at all levels” to “set the tone from the middle” by “demonstrating to employees the importance of compliance,” establishing policies that account for the use of “ephemeral messaging or non-company methods of communication,” applying “data analytics tools in . . . compliance and monitoring,” and involving compliance personnel in “the deployment of AI and other technologies to assess the risks they may pose.” Additionally, the ECCP now addresses its application to civil investigations. The Division’s updates reiterate the necessity of having a robust compliance policy, which, if properly designed, should prevent and detect potential misconduct under the antitrust laws. Companies should work with counsel to review their current compliance policies and make necessary updates.