You have just received notice of a grand jury subpoena duces tecum from the Department of Justice Antitrust Division in connection with a price-fixing investigation. (The likelihood of doing so may be on the rise. In 2008, the Division had 137 pending grand jury investigations, filed 54 criminal cases, and charged 59 individuals and 25 corporations. The Division currently has nearly 150 open cartel investigations. In 2009, the Division collected over $1 billion in criminal fines.) What should you do? Below are ten suggested practical steps.
1. Inform the company’s key decisionmakers. Receipt of a grand jury subpoena is a critical incident. The company’s key decisionmakers should be informed. This discussion may also be an appropriate time to present a brief overview of the Sherman Act, the DOJ’s authority, and the nature, scope, and purpose of a criminal investigation.
2. Ensure that no relevant documents are destroyed. You must avoid even the appearance of anything that could be construed as an unwillingness to cooperate with the investigation, or worse, the obstruction of justice. Therefore, the company and its lawyers should circulate a memorandum or e-mail to the effect that a subpoena has been, or will be, received, and that documents relating to prices, price levels, price terms, competitor contacts, etc., should not be destroyed. Furthermore, the memorandum should indicate that document retention policies which would otherwise call for the destruction of these documents should be suspended. Although at the very outset of an investigation counsel may not necessarily know all the appropriate recipients of such a memorandum, it is likely that counsel can identify the more obvious ones (e.g., decisionmakers who had any authority relating to pricing, as well as their assistants). There may be good reason to circulate such a memorandum more widely.
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