Antitrust matters occupy a unique space in the legal world. They often involve federal agencies, complex regulatory frameworks, and stakes that can threaten the future of a business. If you suspect your company is facing antitrust scrutiny — or if you have received a civil investigative demand — the steps you take before contacting defense counsel can significantly shape how your case unfolds.
This Kirby — Antitrust Defense Guide legal guide is intended for business leaders, compliance officers, and in-house teams who need a clear-eyed view of what to prepare before engaging outside antitrust counsel.
Recognize the Signals Early
Antitrust exposure rarely announces itself with a single dramatic event. It often builds gradually through market behavior, competitor complaints, or regulatory inquiries that seem routine at first. Receiving a subpoena, a CID, or even an informal request for information from the Department of Justice or Federal Trade Commission should be treated as a serious signal that requires immediate attention.
Before calling counsel, document what you know. What triggered the inquiry? Which business practices or transactions are being examined? Who within your organization has relevant information? Having a preliminary internal picture helps defense attorneys move quickly once engaged.
Understand the Landscape
Antitrust law covers a broad range of conduct — price fixing, market allocation, monopolization, merger review, and more. The specific allegations or areas of inquiry will determine the defense strategy. Knowing whether your matter is civil or criminal, and whether it involves state or federal authorities, is critical context that counsel will need from the outset.
Federal regulatory activity in this space has been active in recent years, with agencies issuing new guidelines and enforcement priorities. Staying informed about these developments is not just a compliance exercise — it is a strategic necessity. Tools that monitor the Federal Register and agency feeds can help businesses track relevant changes before they become enforcement actions.
Preserve Documents and Communications
One of the most important steps before contacting counsel is ensuring that relevant documents and electronic communications are preserved. Destroying or altering records — even unintentionally — can create severe legal consequences. Issue a litigation hold if you have not already, and make sure your IT and records teams understand what must be retained.
This is not the time for informal cleanup of email inboxes or file shares. Antitrust investigations often hinge on documentary evidence, and preserving the record protects both your company and your legal position.
What to Ask Antitrust Counsel
When you do engage a defense firm, ask about their experience with the specific agencies and types of matters you are facing. Antitrust defense is specialized — you want attorneys who have navigated investigations, negotiated with regulators, and litigated when necessary. Ask about their approach to parallel proceedings, potential criminal exposure, and how they coordinate with in-house compliance teams.
For broader context on preparing for legal engagement, the guidance at Ill Set You Up offers a useful baseline. In antitrust defense, preparation is not just helpful — it is essential. The quality of your early decisions often determines the range of outcomes available later.