Knowing which fight you are in
A grand jury subpoena signals a criminal inquiry into suspected cartel conduct, while a civil investigative demand from the FTC or the Justice Department usually means a civil investigation, often about a merger or conduct by a firm with market power. Private suits can come from competitors, direct purchasers, indirect purchasers suing under state laws, or a mix, and they often arrive in waves after a government investigation becomes public. State attorneys general, including New York's under the Donnelly Act, bring their own cases. Strategy in one forum can affect the others, so the company's position should be set with all of them in view.
Defenses that often carry the case
Many private antitrust cases are tested early on whether the complaint plausibly alleges an actual agreement, rather than parallel conduct any competitor might choose on its own. Market definition is a frequent battleground in monopolization and merger cases, since a broader market usually means a smaller share. Defendants also contest antitrust injury and damages, often through economists who analyze pricing data, and class certification can be decisive in purchaser cases. Pro-competitive justifications, such as efficiencies or better products, carry weight where the rule of reason applies. Building those defenses requires the company's transaction and pricing data, so locating and preserving it early has real value.
Early decisions for the company and its people
Preserve documents broadly, including messaging apps and personal devices used for work, because enforcers ask specifically about ephemeral messaging. Decide quickly whether to conduct an internal review and who will lead it, and consider whether any employees need separate counsel. In a criminal cartel matter, the Justice Department's leniency program rewards the first qualifying company to come forward, which can make the timing of an internal review significant. Notify insurers, look at indemnity rights against suppliers or sellers of acquired businesses, and plan how disclosures to lenders, auditors, or investors will be handled. Our first discussion usually covers the forum, the scope of preservation, and who inside the company should speak for it.
