Preindictment and Case-Related Proceedings

Pages313-324
313
CHAPTER 15
PREINDICTMENT AND CASE-RELATED
PROCEEDINGS
As the grand jury investigation concludes, attorneys who represent
individuals or corporations that are potential defendants will usually be
contacted by the U.S. Department of Justice’s Antitrust Division
(Division). This contact may be a signal that the government attorneys
are prepared to recommend action against the individual or the
corporation to their supervisors. This Chapter discusses the events
surrounding the conclusion of the grand jury’s investigation, including
final negotiations, the indictment and, if an indictment is returned,
postindictment procedures.
A. Final Negotiations with the Prosecutors
When the investigation regarding a potential target is completed, the
Division prosecutors collate and evaluate the evidence and determine
whether to seek the return of an indictment. If they believe that charges
should be brought, they prepare a draft indictment and a supporting
memorandum setting forth the evidence and addressing significant legal
issues. The staff lawyers forward their recommendation to their section
managers for review and approval. Section managers, in turn, set forth
their recommendation concerning the proposed case and forward the
material to the Deputy Assistant Attorney General for criminal
enforcement for further review. Finally, the case recommendation and
reviewers’ comments and recommendations are forwarded to the
Assistant Attorney General, who must approve any case brought by the
Division.1 The Attorney General rarely becomes involved in
determining whether to bring an antitrust criminal case.
Counsel should request to meet with the staff and their chief in the
event that they consider recommending the client’s indictment. During
such a meeting, counsel can argue that an indictment is not justified or, at
a minimum, should be limited in certain ways (e.g., by omitting
individuals and naming only companies, or by limiting the volume of
1. See U.S. Dep’t of Justice, Antitrust Division Manual, at ch. III (5th ed.
2012) [hereinafter DIVISION MANUAL]. At the time of publication, the
Division Manual was undergoing revision.

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