Criminal and civil tracks
The Antitrust Division of the Department of Justice can prosecute agreements among competitors to fix prices or rig bids as crimes. Civil class actions by purchasers usually follow, often soon after an investigation becomes public. Direct purchasers can generally bring federal damages claims, while indirect purchasers further down the chain usually rely on state laws, which vary. State attorneys general and foreign competition authorities may act as well. A company may be a target, a witness, or a victim, and sometimes more than one at once.
Leniency and early decisions
Federal prosecutors reward the first company that reports a cartel and cooperates through a leniency program, and companies that come forward later usually cannot obtain the same treatment. A federal statute can also reduce civil damages exposure for a leniency recipient that cooperates with civil plaintiffs. Because timing matters so much, a company that learns of possible collusion should investigate quickly through counsel. Employees should be told not to destroy documents or discuss the matter with competitors. Individuals may face criminal exposure apart from the company and may need their own counsel. Internal reviews in this setting often look at pricing communications, trade association contacts, and messaging apps used by sales staff.
For purchasers and for defendants
If your business bought products affected by a cartel, you may be a member of a pending class or may be able to pursue your own claim, which larger purchasers sometimes do. Keep purchase records, invoices, and contracts. Defendants face difficult questions about class certification, damages models, and coordination with the criminal case, and civil discovery may be limited while a criminal investigation proceeds. Whether a large purchaser opts out of a class usually depends on the volume of its purchases and the cost of separate litigation. Knowing your role, your exposure or claims, and the deadlines lets us map out the next steps with you.
