Analysis

Facing an Antitrust Inquiry? What to Clarify Before You Retain Defense Counsel

By John D. Kirby, Former U.S. Federal Prosecutor ·

July 2026 · 6 min read · Federal Defense Network, Former Federal Prosecutor

Antitrust matters rarely arrive with a polite warning. A civil investigative demand, a subpoena, or a call from a regulator can appear with a deadline attached and very little explanation of what is actually being asked. For executives and in-house teams, the first conversation with outside defense counsel is therefore one of the most consequential hours in the entire matter. Getting it right requires preparation, candor, and a clear understanding of what a competent firm should tell you before you sign an engagement letter.

This article offers a practical framework for that first conversation. It is general education, not legal advice about any particular investigation or company.

Establish the Posture Immediately

Antitrust defense is not a single practice — it spans criminal cartel investigations, civil conduct cases, merger review, and private litigation. The posture of your matter determines everything that follows: who the counterparty is, what privileges apply, what the timeline looks like, and what the realistic outcomes are. A firm that does not ask about posture in the first ten minutes is not listening closely enough.

Come prepared with the documents you have received, the agency or forum involved, and any stated deadlines. If you have already spoken with regulators or opposing counsel, say so. Early candor protects the firm's ability to advise you.

Ask About Conflicts and Privilege

Antitrust matters often involve multiple individuals and entities whose interests may diverge. Ask directly how the firm handles conflicts, whether it can represent the company and its employees, and what happens if interests later diverge. Ask, too, how the firm will protect privilege — including how internal communications should be handled from this point forward.

These questions are not hypothetical. They shape whether the advice you receive is usable and whether the investigation proceeds smoothly.

Understand the Scope and the Cost

Antitrust defense can be expensive, and the cost drivers are specific: document review, economic analysis, expert retention, and potential multi-forum proceedings. Ask the firm to explain the likely phases of the matter and which ones drive cost. Ask whether economists or other experts will be retained, and how that decision is made. Ask for the fee structure in writing, including how expenses are handled and who approves major expenditures.

A firm that can map the phases and name the cost drivers is a firm that has done this before.

Ask About Strategy and Communication

You should leave the first call with a sense of the firm's initial read on the matter, the immediate steps it recommends, and the deadlines that cannot slip. Ask how often you will receive updates and who your point of contact will be. Ask what the firm needs from you — documents, interviews, access to personnel — and in what order.

For a broader plain-language walkthrough of what a well-prepared first legal consultation should cover, the guide at Ill Set You Up is a useful reference to review beforehand.

Antitrust inquiries reward preparation and punish delay. The right defense counsel will make the uncertainty manageable — but only if you ask the questions that surface how the firm actually works.

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