Antitrust matters move quickly and carry consequences that reach well beyond a single transaction. Whether the trigger is a civil investigative demand, a competitor complaint, a merger review, or an internal concern about pricing practices, the decision to contact defense counsel is usually made under time pressure. Knowing what to clarify in advance makes that first conversation far more effective.
Understand What Kind of Matter You Are Facing
Antitrust encompasses several distinct areas — horizontal and vertical restraints, monopolization claims, merger review, and pricing or distribution practices among them. Each carries different exposure and different procedural rhythms. A defense team needs to know early whether the matter is civil or criminal in nature, whether a government agency is already involved, and whether any deadlines have been set. Visitors reviewing the Kirby — Antitrust Defense Guide legal guide should treat this classification as the first item on the agenda.
Preserve First, Explain Second
One point deserves emphasis before any other: document preservation obligations can attach very early, sometimes upon reasonable anticipation of litigation or investigation. Before calling counsel, avoid deleting or altering records, and be prepared to describe what document systems exist and who controls them. Defense counsel will need to issue a preservation notice promptly, and a clear picture of the organization's data landscape accelerates that work considerably.
What Defense Counsel Will Ask
A productive first call typically covers:
- The nature of the conduct or transaction under scrutiny
- Which agencies or parties are involved, and any correspondence received
- Key deadlines stated in any demand, subpoena, or notice
- The internal individuals with knowledge of the relevant facts
- Prior legal advice or internal reviews already conducted
Having these answers organized — even roughly — allows counsel to assess urgency and begin shaping a response strategy rather than spending the call gathering basics.
Confidentiality and the Initial Consultation
Prospective clients often worry about what they can safely disclose during an initial consultation. Conflicts screening must occur before a formal engagement, and counsel will explain the boundaries of the preliminary conversation. Ask about this directly. A defense team that clearly explains the conflicts process and the point at which privilege attaches is demonstrating the procedural discipline that antitrust defense demands.
Evaluating Fit
Antitrust defense is specialized. Ask prospective counsel about their experience with the relevant agency, the industries they have defended, and the types of proceedings they have handled — investigations, administrative actions, or private litigation. Ask how the team is staffed and who will lead the matter. These questions are not impertinent; they are the due diligence any sophisticated client should perform.
Next Steps
The goal of the first call is to establish fit and identify immediate action items, not to resolve the matter. Come prepared with facts, deadlines, and a preservation mindset, and expect counsel to explain both the process ahead and the boundaries of the engagement. For a general framework on what to have ready before contacting a law office, the reference article at abepcs.com provides useful background.