The moment you learn that your business or yourself are under federal investigation for potential antitrust violations can be overwhelming. The primary concern should always be to understand the nature of the investigation and the specific allegations being investigated. Under the Sherman Act, investigations related to per se offenses (such as price-fixing) and those requiring a rule of reason analysis (like certain restraints of trade that may have pro-competitive effects but also harm competition) are common. Additionally, criminal antitrust violations such as bid rigging can lead to serious consequences.
The Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division are typically involved in these investigations. Both agencies have broad powers to subpoena documents and compel testimony from individuals and corporations under investigation. Understanding their roles is critical, especially when navigating the complexities of antitrust law.
Immediate Actions: The First 48 Hours
The first 48 hours are crucial in responding to an antitrust investigation. Your immediate action should be to retain experienced counsel who specializes in federal criminal defense and antitrust law. This is not the time for a generalist attorney or someone without specific experience in this area.
Why Early Counsel Is Essential
Hiring early counsel allows you to understand your legal rights, review potential defenses, and ensure that your interactions with investigators are strategic and protective of your interests. Early involvement from experienced counsel can also help manage the investigation process more effectively, potentially reducing the scope or even terminating it.
What NOT To Do
Avoid taking any actions without consulting legal advice first. This includes responding to requests for documents or interviews with investigators until you have a clear understanding of your rights and obligations under the law. Do not engage in any discussions about the case on social media or with colleagues that could be construed as an admission of wrongdoing.
Approach to Document Preservation
The preservation of all relevant documents is critical when faced with an antitrust investigation. This includes emails, texts, memos, and any other form of communication that might pertain to the investigation. Failure to preserve these materials can lead to serious legal consequences, including charges related to obstruction of justice.
It’s also important to maintain a thorough chain of custody for all documents and communications, ensuring their integrity as evidence in case litigation ensues. Early consultation with your attorney on this matter can provide guidance specific to the nature and scope of the investigation against you or your organization.