Protocol for Investigating a Suspected Criminal Antitrust Violation. Advice and Considerations Preceding an Investigation. Discovery of the Problem and Initial Advice to the Client.

During the thirty plus years that I have practiced in the area of antitrust litigation, counseling and compliance, I have been successful in assisting clients "nip in the bud" potential antitrust disasters. Even when the bud was not nipped early enough to avoid all adverse consequences, I was able to negotiate a satisfactory, and less expensive, resolution of criminal antitrust problems with antitrust enforcement authorities. I have achieved these results by conducting a private investigation of my client.

Attorneys often learn by accident that a client has a potentially serious antitrust problem. For example, while performing legal services for a corporate client in a routine engagement, an attorney may discover documents or other factual information which indicates that the client is participating in concerted activity with competitors that can be prosecuted as a criminal violation ^[16] of Section 1 of the Sherman Act. Or, an employee of the client may request advice from an attorney about activity which he/she suspects may be illegal under the antitrust laws. ^[17]

Confronted with such information, the attorney must not ignore it. Of course, the attorney cannot require the client to take action to address the problem. ^[18] Nevertheless, the attorney must provide the client unambiguous notice of the seriousness of the problem and make preliminary recommendations about how the client should deal with it. At a minimum, the attorney should orally: ^[19]

Explain to the client the potential direct and collateral consequences of participating in conduct which constitutes a criminal violation. Recommend that the client act immediately to terminate the clients participation in the conspiracy and withdraw from the conspiracy, and investigate the nature and extent of the clients participation in the conspiracy .

^[16] In recent years, criminal prosecutions under the Sherman Act have been limited to hard core conduct among competitors, including bid-rigging, horizontal price-fixing , horizontal market allocation and horizontal customer allocation.

^[17] This discussion assumes that neither the client nor the attorney has information that a law enforcement agency is investigating the suspicious conduct.

^[18] If the client refuses to follow the attorneys advice concerning appropriate steps to respond to a potentially serious problem that could adversely affect the value or viability of the client, the attorney may wish to terminate the representation.

^[19] The attorney must carefully document the file regarding providing this advice.