Civil Investigative Demands

• Pages: 61-89

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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.1The 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 was originally 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

1. 15 U.S.C. § 1312(a); see U.S. DEP’T OF JUSTICE,ANTITRUST DIV.

MANUAL III-51 (Dec. 2008) [hereinafter ANTITRUST DIV.MANUAL],

available at http://www.justice.gov/atr/public/divisionmanual/atrdivman.

pdf.

2. 15 U.S.C. § 1312(a); see Nat’l Elec. Mfrs. v. United States, No. 87-1889,

1987 WL 25532, at *1 (D.D.C. 1987); ANTITRUST DIV.MANUAL,supra

note 1, at III-47-48.

3. See Associated Container Transp. (Austl.) v. United States, 705 F.2d 53,

57-58 (2d Cir. 1983); Austl./E. U.S.A. Shipping Conference v. United

States, No. 80-1830, 1981 WL 2212, at *8 (D.D.C. 1981), modified, 537

F. Supp. 807 (D.D.C. 1982), vacated as moot, Nos. 82-1516, 82-1683

(D.C. Cir. Aug. 27, 1986).

4. See ANTITRUST DIV.MANUAL,supra note 1, at III-53, III-57.

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

2567, 2568.

62 DOJ Civil Antitrust Practice and Procedure Manual

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

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, the necessary timeline for

obtaining it, and attaching a copy of the CID itself.10 Separate forms

exist within the Division for each type of CID.11 The CID must

generally “state the nature of the conduct constituting the alleged

antitrust violation” and the “provision of the law applicable thereto.”12

Every CID must also identify a custodian and deputy custodian.13 The

custodian and deputy custodians are responsible for (a) taking physical

possession of the documentary material, interrogatory answers, and

transcripts of oral testimony produced pursuant to the CID; (b) protecting

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

2596. See id. at 2, 4-6, 1976 U.S.C.C.A.N. at 2596, 2599-600; H.R. REP.

NO. 87-1386, 1962 U.S.C.C.A.N. at 2568-69.

7. Although many violations 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 investigations under the False Claims Act. See 31

U.S.C. § 3733.

9. See ANTITRUST DIV.MANUAL,supra note 1, at III-62.

10. See id.

11. See id.

12. 15 U.S.C. § 1312(b)(1).

13. See id. § 1313(a).