Genesis of the Investigation

• Pages: 1-8

1

CHAPTER 1

GENESIS OF THE INVESTIGATION

For an individual or a company, the initial contact in an antitrust

investigation can begin a process that will last for years. For an

individual, it can ruin a promising career, tear a family apart, and lead to

imprisonment for a significant period of time. For a corporation, it can

jeopardize the business and trigger a cascade of investigations and

lawsuits that can last for years, command the attention and resources of

management, and cost hundreds of millions of dollars.1

By the time an individual or corporation is contacted, the

investigation is often well advanced. As explained in this chapter, the

investigation will have been reviewed and evaluated within the

government in order to pursue only conduct that is criminal in nature.

The sources the government draws from are varied and diverse. As the

government obtains more detailed and specific information, it can utilize

procedures such as search warrants, knock-and-talk interviews, or even

covert recordings.

A. Conduct Generally Subject to Grand Jury Investigation

A grand jury investigation of possible antitrust law violations must

be authorized by the Assistant Attorney General in charge of the U.S.

Department of Justice’s Antitrust Division (Division). When initiating a

grand jury investigation, staff attorneys review a number of factors in

evaluating the potential significance of a matter, including the volume of

commerce involved,2 the geographic area affected, the potential for the

investigation to expand to other areas or industries, the deterrent force

and visibility of any resulting prosecution, the culpability of the

1. For an informative description, see DONALD C. KLAWITER, A Guide to

the Costs and Consequences of an Antitrust Criminal Investigation for

Corporate Executives, in 49TH ANNUAL SPRING MEETING, SECTION OF

ANTITRUST LAW, March 28-30, 2001, Washington, D.C. 1127 (2001).

2. While volume of commerce is a factor, even relatively small amounts of

commerce have resulted in criminal antitrust prosecutions.