Antitrust Investigation Response Checklist: A Practical Checklist

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

Filed within days of the first public charge — anticipated, not reacted to.
Exposure mapped: treble damages, joint and several liability, no contribution; federal direct-purchaser classes under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) with no pass-on defense after Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968); state indirect purchaser actions; opt-outs; broad venue under 15 U.S.C. § 22.
Pleading obstacle understood to be minimal after a plea — Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) is satisfied by the admissions.
If we have leniency: ACPERA cooperation designated immediately — satisfactory cooperation yields single damages on our own sales instead of treble joint-and-several exposure.
Every ACPERA production and interview logged, so a court years later can find the cooperation satisfactory.
Criminal and civil defense coordinated; statements in one usable in the other.

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.