What turns a competition issue into a crime
Most antitrust questions are civil. The Antitrust Division of the Department of Justice reserves criminal prosecution mainly for agreements between competitors that are treated as unlawful on their face, with price fixing and bid rigging as the classic examples. Both companies and individual employees can be charged, and executives located outside the United States are not out of reach. Criminal investigations often run alongside civil class actions brought by purchasers, so what a company says and produces in one setting tends to matter in the other. Some states also have criminal antitrust laws of their own, and state attorneys general may be investigating the same conduct.
The first decisions
Once a company learns of potential cartel conduct, timing can matter a great deal. The Antitrust Division runs a leniency program that offers significant benefits to a company that reports qualifying conduct first and cooperates fully, and the program's conditions are strict. Whether to approach the government, and when, is a judgment that needs a close look at the facts. Preservation should begin right away: suspend routine deletion, secure phones and messaging apps that employees use for work, and avoid internal discussions that could look like coordinating stories. Employees who are contacted by agents can decline to talk without a lawyer, and they should never be told to stay silent or to shade the truth.
Company counsel and individual counsel
A company's lawyers represent the company, and individual employees may need their own counsel, especially if their interests could diverge from the company's. In early meetings we look at what the government appears to be focused on, what records exist, which people may be witnesses or subjects, and whether the company is in a position to consider self-reporting. We also look at related exposure, including civil damages claims, foreign competition authorities, and debarment from public contracts. For individuals, the questions include whether to speak with investigators, whether there is a path to cooperation, and how immigration or employment status might be affected.
