Civil Investigative Demand

• Pages: 71-99

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CHAPTER IV

CIVIL INVESTIGATIVE DEMANDS

A. The Antitrust Civil Process Act and Amendments

Congress enacted and has amended the Antitrust Civil Process Act

(ACPA), to provide the Antitrust Division with broad powers to

investigate possible antitrust violations.1 The ACPA empowers the

Assistant Attorney General in charge of the Antitrust Division to issue a

civil investigative demand (CID) to any person who he or she has reason

to believe may possess documents or information relevant to a civil

antitrust investigation,2 including both the targets of antitrust

investigations as well as third parties.3 CIDs can require a recipient to

produce specified documentary material (including electronically stored

information), give sworn answers to written interrogatories, give a sworn

oral deposition, or furnish any combination of such responses.4

The ACPA originally was intended to “enable the Department of

Justice to obtain documentary evidence during the course of a civil

investigation to enforce the antitrust laws,”5 but it was expanded by

amendment to provide the Division “with all the basic investigative tools

necessary for effective and expeditious investigations into all the

possible civil violations of the federal antitrust laws.”6 Congress thereby

1. 15 U.S.C. §1312(a); see also U.S. DEP’T OF JUS TICE, ANTITRUS T DIV.

MANUAL III-17, III-45, III-47 (5th ed. rev. Apr. 2017) [hereinafter

Antitrust Div. Manual], http://www.justice.gov/atr/file/761166/download.

2. 15 U.S.C. §1312(a); see also Associated Container Transp. (Austl.) v.

United States, 705 F.2d 53, 57-58 (2d Cir. 1983); In re Delta/Airtran

Baggage Fee Antitrust Litig., 2015 WL 4635729, at *1 n.3 (N.D. Ga.

Aug. 3, 2015); Australia/Eastern U.S.A. Shipping Conference v. United

States, 1981 WL 2212, at *8 (D.D.C. 1981; Antitrust Div. Manual, supra

note 1, at III-45.

3. See National Elec. Mfrs. v. United States, 1987 WL 25532, at *1 (D.D.C.

1987).

4. See Antitrust Div. Manual, supra note 1, at III-47, III-52-III-53.

5. H.R. REP. NO. 87-1386, at 3 (1962), reprinted in 1962 U.S.C.C.A.N.

2567, 2568.

6. H.R. REP. NO. 94-1343, at 1 (1976), reprinted in 1976 U.S.C.C.A.N.

2596; see also id. at 2, 4-6, 1976 U.S.C.C.A.N. at 2596, 2599-600.

72 DOJ Civil Antitrust Practice and Procedure Manual

granted the Division compulsory process authority for its civil

investigations comparable to the grand jury subpoenas available for its

criminal investigations,7 as well as investigative powers similar to those

exercised by dozens of federal law enforcement agencies and many

executive branch and independent regulatory agencies.8

B. Requirements

Once a Division section or field office has been granted

authorization to conduct an antitrust investigation, it may request the

issuance of a CID from the Assistant Attorney General.9 This request is

made by forwarding an explanatory memorandum to the section or field

office chief, specifying the need for the CID, requesting a production

date, and attaching a copy of the CID itself.10 The Division Manual states

that, for the first CIDs in a particular investigation, careful consideration

is to be given to the potential significance of the matter and the resources

that the CIDs will consume.11

1. CID Form and Custodians

Separate forms exist within the Division for each type of CID.12 The

CID generally must “state the nature of the conduct constituting the

alleged antitrust violation” and the “provision of the law applicable

thereto.”13 Every CID al so must identify a custodian and deputy

custodian.14 The custodian and deputy custodians are responsible for (a)

7. Although many viola tions of the Sherman Act , 15 U.S.C. §1 and § 2, are

criminally punishable as felonies, Congress also authorized the

government to institute proceedings in equity to prevent and restrain such

violations, investing the federal district courts with jurisdiction over such

proceedings. See 15 U.S.C. §4.

8. For example, CIDs may be issued by the Department of Justice in

connection with inve stigations under the False Claims Act. See 31 U.S.C.

§ 3733; see also H.R. REP. NO. 94-1343 (in discussing proposed 1976

amendments, noting that similar investigative powers are e xercised by

nearly forty important federal law enforcement agencies and other

Executive-branch and independent regulatory agencies).

9. See Antitrust Div. Manual, supra note 1, at III-58.

10. See id.

11. Id. at III-58-III-59.

12. See id. at III-59.

13. 15 U.S.C. § 1312(b)(1).

14. See id. § 1313(a).