Reading the first signal
Civil inquiries by the Department of Justice or the Federal Trade Commission often begin with a civil investigative demand for documents, written answers, or testimony. Criminal antitrust investigations, usually about agreements among competitors such as price-fixing or bid-rigging, run through grand juries and sometimes involve search warrants. Merger reviews can bring a request for additional information before a deal may close. A company receiving a demand is not necessarily the focus; customers, suppliers, and competitors often receive demands as third parties. Clarifying early whether the company is a target, a subject, or a witness shapes almost every decision that follows, and counsel can usually ask the government directly.
Employees, interviews, and searches
Investigators sometimes contact employees at home, often on the same day a search or subpoena arrives at the office. Employees may choose whether to speak with them, may ask to have a lawyer present, and should not be told by the company that they must refuse to cooperate. If agents arrive with a warrant, do not obstruct them; have counsel contact the agents promptly and keep a record of what is taken. Issue a litigation hold right away and suspend automatic deletion of email, chat, and messaging data, including on phones employees use for work. Some employees may need separate counsel, particularly where individuals face personal exposure, and the company should address that early.
Running an internal review alongside
Companies under investigation often conduct an internal review under the direction of counsel to learn what happened before the government does. Interviews of employees in that review should make clear that counsel represents the company, not the individual. The findings feed into decisions about cooperation, including whether to seek leniency, which in cartel matters can be available to the first qualifying company to report. The review also informs reporting to the board, auditors, and insurers, and preparation for the private lawsuits that frequently follow a public investigation. In a first meeting, we review the demand or subpoena, the conduct it concerns, the company's role, and the people and communications most likely to matter.
