Document type: Checklist Practice area: Corporate—Antitrust Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Part 1—Recognize the signal

  • Unannounced approach to an employee at home by federal agents.
  • Search warrant executed at company premises.
  • Grand jury subpoena to the company or an individual.
  • A competitor's counsel calls to say their client has applied for leniency. (The race is over.)
  • Internal discovery: compliance audit, departing employee, document in unrelated litigation, or acquisition diligence.
  • Understood: the first forty-eight hours are disproportionately important—they determine whether evidence survives, whether employees say things that cannot be unsaid, and whether we are first in line.

Part 2—The first forty-eight hours

  • Criminal antitrust counsel engaged the same day—not the regular corporate firm unless it has this practice.
  • Litigation hold issued immediately (see Part 3).
  • Affirmative no-destruction instruction issued and documented—who delivered it, to whom, when. (18 U.S.C. § 1512 obstruction has produced longer sentences than the underlying offense.)
  • Employees briefed neutrally on their rights: they may speak with agents or decline; they may have counsel present; they must not lie—18 U.S.C. § 1001 is a separate felony; the company will provide counsel.
  • Understood: telling employees not to cooperate looks like obstruction. Deliver information, not instruction.
  • Proceed immediately to the marker analysis (Part 5). Do not spend a week getting comfortable.

Part 3—The litigation hold, aimed at cartel evidence

Sources cartel investigations actually care about:

  • Email and archives.
  • Calendars—meetings that appear nowhere else.
  • Expense and travel records—dinners, conferences, who was in which city.
  • Phone records, including mobile—the call to a competitor rarely appears in email.
  • Chat and messaging platforms, including personal messaging used for work.
  • Trade association materials: agendas, attendee lists, minutes, informal circulated materials.
  • Benchmarking and statistical program submissions and outputs.
  • Bid files: drafts, internal approvals, any communication about a competitor's expected bid.
  • Shared drives and document repositories.

Implementation:

  • Written IT confirmation, system by system, that deletion is suspended. (A hold announced but not applied is worse than none.)
  • Short-retention messaging platforms specifically identified and suspended.
  • Departed employees' accounts and devices preserved; device-wipe-on-departure suspended.
  • Backups and legacy systems covering the conspiracy period preserved.
  • Quarterly reminders and re-acknowledgments scheduled—a four-year matter outlasts attention.

Part 4—If a search is underway

  • Written protocol exists and reception has been trained: notify a named list, ask agents to wait in a designated room, say nothing else.
  • Counsel to the site immediately; on the phone until arrival.
  • Warrant obtained and read: premises, items, date range, issuing court, agent in charge.
  • No consent beyond the warrant's scope—consent expands the search and cannot be withdrawn.
  • Search shadowed: employees assigned to each agent team, contemporaneous notes of what is searched and taken, inventory requested.
  • Privilege asserted clearly, segregation requested, and the assertion logged.
  • No obstruction—no deletion, removal, or "let me just grab that file."
  • Non-essential employees sent home; those remaining told they may decline interviews, may have counsel, must not lie.
  • Interviews captured: who, by whom, how long, and afterward what was asked and said.
  • Hold issued before end of day.
  • Move immediately to Part 5.

Part 5—The marker decision, on incomplete facts

Four questions:

  • Is there conduct that could be a per se offense? Evidence of communication with competitors about price, bids, customers, territories, or wages. (A pattern of contacts plus a suggestive correlation is enough to ask.)
  • Are we plausibly first? Has any competitor recently had a change of ownership or general counsel, a departing executive, or an unrelated investigation? If so, assume the clock is running.
  • What is the exposure if we are second? Fine under 18 U.S.C. § 3571(d)—twice gross gain or loss; treble damages under 15 U.S.C. § 15 with joint and several liability and no contribution after Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981); state indirect purchaser claims; foreign fines and damages; individual prosecutions.
  • Can we qualify? Not the leader or originator; no coercion; prompt termination possible; a corporate confession rather than individual ones.

Then:

  • Marker sought. It holds our place while the investigation completes, and it can be sought on very little.
  • Framed for the board as preserving an OPTION—not an admission, and withdrawable. That makes it a one-day decision.
  • Where the answer is genuinely unclear: seek the marker anyway. The asymmetry of outcomes decides it.

And test the alternative explanations honestly:

  • Parallel pricing in a concentrated, transparent market is expected, not suspicious.
  • Vertical discussions with customers or suppliers are not horizontal agreements.
  • Standards, safety, regulatory advocacy, and genuine joint ventures are lawful and analyzed under the rule of reason.
  • The narrow factual question: was there an exchange of assurances with a competitor about price, bids, customers, territories, or wages—answered with evidence, not with an executive's characterization.

Part 6—Global coordination, the same week

  • Local counsel engaged in every affected jurisdiction within days.
  • Parallel leniency applications filed the same week—United States leniency confers nothing elsewhere.
  • Each regime's own marker system, content requirements, and sequencing constraints checked.
  • Accounts consistent across jurisdictions—authorities cooperate and compare; inconsistency is worse than lateness.
  • Foreign follow-on damages exposure and disclosure rules mapped, including whether leniency materials are protected.

Part 7—The internal investigation

  • Scoped in writing at counsel's direction, in anticipation of litigation: conduct, period, systems, custodians, authorization.
  • Separate counsel retained for individuals early, funded where charter, bylaws, and law permit.
  • Upjohn warnings in every interview, documented: counsel represents the company; the privilege belongs to the company; the company may waive and disclose, including to the government.
  • Stop and refer when an individual's exposure diverges.
  • Investigated what the government will investigate: competitor contacts of every kind, calendars, travel and expense, phone records, trade association participation, benchmarking programs, and correlation with pricing or bidding.
  • Record format chosen knowingly—attorney memoranda vs. verbatim transcripts.
  • No findings document until conclusions are settled.
  • Waiver question planned at board level—cooperation credit generally requires providing information about individuals.
  • Conduct terminated, with a documented instruction, communication, and record.

Part 8—Joint defense arrangements

  • Not joined before the leniency decision is made.
  • Entered in writing, with an express exit provision permitting withdrawal and independent action including cooperation.
  • Treatment of previously shared material defined.
  • Individuals' counsel kept separate from the corporate joint defense structure.
  • Understood that prosecutors view these arrangements with attention and sometimes characterize participation as continued alignment.

Part 9—The grand jury phase

  • Document subpoena scope negotiated—custodians, date range, format.
  • Rolling production; privilege logged; no late production without an agreed extension.
  • Every testifying employee has their own counsel.
  • Witnesses prepared with documents, not themes.
  • Three habits taught: answer the question asked; say "I don't recall" when true; do not speculate about a document you did not write.
  • Witnesses told they may step out to consult counsel.
  • Immunity offers left to the individual and their counsel; no company attempt to influence.
  • Target / subject / witness status asked, and re-asked as the investigation develops—including the company's own status.
  • Parallel civil, foreign, and regulatory proceedings coordinated; stay of the civil case sought where the overlap is real.

Part 10—Leniency conditions (confirm each, continuously)

  • First in.
  • Prompt and effective termination—documented. (Continuing "to avoid tipping off the others" forfeits leniency.)
  • Candid and complete reporting—the most common way applicants lose leniency is a partial account, discovered when a competitor's cooperation contradicts it.
  • Full, continuing, complete cooperation—for years; a company that becomes uncooperative in year three loses what it earned in year one.
  • A corporate act, authorized at an appropriate level.
  • Restitution where feasible.
  • Not the leader or originator; no coercion—assessed honestly at the outset.
  • Individual coverage mapped: cooperating current directors, officers, and employees typically covered; departed employees frequently are not, nor are those who refuse to cooperate.

Part 11—If you were not first

  • Cooperate early anyway—credit is graded on timing, and second is far better than fourth.
  • Establish what the leniency applicant has said: period, participants, mechanism.
  • Contest the scope, not the existence—products, geographies, period, which employees, and whether particular conduct was within the agreement.
  • Fight the volume of affected commerce—it is the base of the fine and the anchor of the civil claim. Excluding sales outside the conspiracy's scope pays twice.
  • Negotiate carve-outs to protect defensible individuals.
  • Test whether any conduct is genuinely outside the per se categories.
  • Plan the civil case from the start—15 U.S.C. § 16(a) makes the plea's factual admissions prima facie evidence, and the admissions are negotiable.

Part 12—Plea terms

  • Charged conduct and period defined.
  • Volume of affected commerce negotiated hardest.
  • Fine, payment schedule, ability-to-pay considerations.
  • Cooperation obligations and the credit earned.
  • Treatment of individuals—who is covered, who is carved out.
  • Factual admissions drafted with civil counsel in the room.

Part 13—The follow-on civil litigation

Part 14—Collateral consequences

  • Suspension and debarment engaged in parallel with the criminal resolution—a different part of the government, on a different timeline. A plea without an administrative agreement can leave a company criminally resolved and commercially finished.
  • Program exclusion and licensing consequences in regulated industries.
  • Foreign fines, procurement debarment, and follow-on damages.
  • Public company disclosure and reserves—probable and estimable analysis, timing, and interaction with an ongoing investigation. Auditors and disclosure counsel involved early.
  • All insurers notified. Fines and penalties typically uninsurable; defense costs may be covered; analysis differs across the criminal matter, class actions, and any derivative suit.
  • Derivative and securities litigation anticipated.
  • Personnel decisions made on documented grounds, with counsel; advancement and indemnification addressed early and consistently.
  • Commercial disruption of termination explained to the business.
  • A single maintained chronology kept from day one—the document that saves the matter when the third set of lawyers arrives.

Part 15—Remediation and prevention

  • Conduct terminated and documented; personnel decisions and control changes recorded.
  • Training aimed at the people who actually talk to competitors—sales, procurement, estimating, executives in trade association roles. Short, concrete, industry-specific, with real examples.
  • Trade association protocol: agendas reviewed in advance, counsel available, no discussion of price, cost, capacity, customers, or bidding, and a documented obligation to leave and report if one begins.
  • Information exchange programs audited—aggregated, historical, independently administered is generally lawful; current, disaggregated, company-identified is not.
  • Labor-market agreements screened—no-poach and wage-fixing have been prosecuted criminally and are frequently made by human resources without antitrust involvement.
  • Bidding controls for public procurement: training on complementary bidding, bid rotation, and agreements not to bid, plus a per-bid certification that no competitor communication occurred.
  • Antitrust diligence in acquisitions asks about competitor contacts and trade association participation, not only market shares.
  • Reporting channel people will use, with real responses.
  • Escalation path shortened—a general counsel who learns something alarming on Tuesday reaches experienced counsel on Tuesday.

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This checklist is general information, not legal advice, and does not create an attorney-client relationship.