Who enforces and with what tools
At the federal level, the Department of Justice's Antitrust Division handles both civil matters and criminal prosecutions, mostly involving cartel conduct among competitors. The Federal Trade Commission enforces competition law through civil and administrative proceedings. State attorneys general, including New York's, enforce federal and state antitrust law, and New York's own antitrust statute reaches some conduct criminally as well. Investigations begin with document demands, interrogatories, and testimony, and criminal investigations may involve grand jury subpoenas or search warrants. In merger review, a request for additional information can extend the timeline and require a large production of documents and data.
Responding to a demand or subpoena
Preserve documents immediately, including email, messaging apps, collaboration tools, and the personal devices employees use for work. Destroying or altering records after an investigation starts can lead to obstruction charges that are separate from and sometimes more serious than the underlying matter. Identify who received the demand and who is likely to be asked questions, and remind employees that they may be contacted directly. Negotiate the scope and timing of production through counsel, since agencies often agree to adjustments. In criminal cartel matters, individuals can be prosecuted, and employees may need separate representation.
Early strategic choices
In cartel investigations, the Justice Department runs a leniency program that can offer significant benefits to the first company to report and cooperate, subject to conditions, which makes the timing of any internal investigation critical. In civil investigations, an early presentation to the staff explaining the business reasons for the conduct can sometimes narrow the inquiry. Government action is often followed by private damages suits, so positions taken with the agency should be considered with that in mind. We help companies and individuals assess the exposure, conduct internal reviews, respond to demands, and decide whether and how to engage with enforcers.
