Counseling Clients Compliance

Counseling Clients & Compliance

In the clients eyes, the antitrust trial process takes too long normally 2 to 5 years . Unsophisticated clients often do not recognize at the beginning of a case the many costs that are involved, aside from legal fees. For example, there are the costs of document production. The client usually needs to send memos to all of its offices about the lawsuit, instructing its employees not to destroy any applicable documents and to look for the documents that the government or a private plaintiff wants. It is a very laborious process to do document production correctly, and it is expensive in terms of employee time. Indeed, lawyers cannot do it themselves . The process requires direct client participation. There could also be warehousing costs. Sometimes a company will be required to rent an entire warehouse to store documents and hire librarians to keep track of all the documents that are there. There are a lot of hidden costs that a client may not think about ahead of time that can be a source of frustration.

In addition, sometimes clients do not appreciate what might be found during the process. They might uncover documents that they would just as soon not have seen the light of day. There are also the inevitable problems with electronic discovery. Employees write damaging or unhelpful e- mails all the time, and companies do not always appreciate the likelihood that they will be surprised by these e-mail messages, in spite of instructions concerning what not to say and do in e-mail.

I try to respond to client frustrations over cost ahead of time. Once the lawsuit is filed against the client, I sit down with the client and go through the allegations to determine their validity or basis and the defenses. I also work with the client to determine what witnesses we will potentially need to prove certain points. You can determine relatively accurately, within a month or two of receiving the complaint, who is going to have to be deposed on your side, on the other side, the extent of the document production, the warehousing and electronic discovery costs, and what experts will be needed. As the attorney, you should assist your client to plan and budget ahead of time.

Of course, the best way to avoid the costs of litigation is to avoid activities that could lead to litigation in the first place. To that end, I would recommend that most companies initiate an antitrust compliance program. I have been involved in a number of grand jury investigations where employees talk about what they learned in and remember from their antitrust compliance programs. An effective compliance program can have a lasting influence on a clients employees and can save a client many millions of dollars if it keeps the employees from committing antitrust violations. There is no antitrust case that does not cost the company enormous amounts of money. As a result, a company should consider spending a modest amount on antitrust programs to avoid the money pit of litigation further down the road.

Two of the more common antitrust activities include price-fixing and bid rigging. Both can result in enormous civil and criminal penalties. Companies should therefore stress to their employees to abstain completely from these types of activities, and be serious about it.