Conduct Investigations

• Pages: 149-162

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CHAPTER VI

CONDUCT INVESTIGATIONS

A. The Course of an Investigation

Civil conduct, or non-merger, investigations arise and proceed

through the Division in many ways. Some investigations amount to little

more than a staff lawyer examining public sources to assess whether to

recommend undertaking a formal investigation. At the other end of the

spectrum, non-merger civil investigations can last for well over a year,

entail extensive formal discovery of the parties and third parties, and

culminate in a consent decree or litigated challenge.

Most civil non-merger investigations might usefully be thought of as

having four stages. First, the Division obtains information suggesting

that an antitrust violation may have occurred. Such information may

come to the Division’s attention through various channels including

complaints from consumers or competitors, the staff’s own ongoing

market observations (e.g., via monitoring of trade or general press), or an

inquiry from Congress or another agency.1 The Division also monitors

private antitrust litigation to assess whether a matter warrants the

Division’s investigative attention.2

Next, Division staff gather additional information from publicly

available sources to determine whether the nature of the conduct, its

marketplace context, and the magnitude of its impact on consumers and

the competitive process warrant expenditure of the time and resources

necessary to conduct a further investigation. During this phase of the

investigation, and prior to the Division initiating a formal investigation,

staff is not permitted to contact participants in the industry (other than

1. See U.S. DEP’T OF JUSTICE,ANTITRUST DIV.MANUAL III-6 (Dec. 2008)

[hereinafter ANTITRUST DIV.MANUAL], available at http://www.justice.

gov/atr/public/divisionmanual/atrdivman.pdf. For a discussion of the

various channels available, see supra Chapter III.

2. See ANTITRUST DIV.MANUAL,supra note 1, at III-6.