ANTITRUST DIVISION MANUAL CHAPTER III

INVESTIGATION AND CASE DEVELOPMENT Finding and Evaluating Antitrust Complaints Recommending a Preliminary Inquiry Standards for Approval a Preliminary Inquiry Making a Request for Preliminary Inquiry Authority FTC Clearance Procedure Referral of a Matter to Another Prosecutorial Agency Conducting the Preliminary Inquiry Planning the Investigation Obtaining Assistance from Federal Agencies Federal Bureau of Investigation Other Federal Agencies Obtaining Information by Voluntary Requests Considerations In Using Voluntary Information Requests Confidentiality Considerations Status Reports on Investigations Standards for Determining Whether to Proceed By Civil or Criminal Investigation Evaluating the Results of a Preliminary Inquiry Closing an Investigation Conducting a Merger Investigation A Basic Guide to the Premerger Notification Statute and Rules Determining Whether the Act Applies Tests Definitions Calculating the Thresholds Special Types of Transactions Exemptions to the Reporting Requirements Filing Mechanics Waiting Period Early Termination of the Waiting Period Request For Additional Information Other Provisions of the Act and the Rules Preliminary Injunction; Hearings Enforcement of the Act Confidentiality of HSR Materials Relationship of Premerger Notification to Other Statutes Reviewing Premerger Filings Procedures For Getting Premerger Filings to the Staff for Review Substantive Review of the Filing Contents of the Form Other Sources of Information Assessing the Completeness of the Filing Recommendation to Open or Not Open an Investigation The No-Interest Memorandum Opening a Preliminary Inquiry e.  Clearance Procedure Preclearance Contracts with the Parties Maintaining the Filings Merger Investigation Overview The Preliminary Inquiry Second Request Authority Model Second Request The Second Request Letter Negotiating Modification Compliance with the Second Request After the Second Request Is Issued After the Parties Are in Substantial Compliance Procedures for Recommending Suit Issuing Civil Investigative Demands Function of Civil Investigative Demands Where CIDs Can Be Used Criminal Investigations Other Matters Wherein CID Use Is not Authorized Basic Characteristics of CIDs Legislative History of the Antitrust Civil Process Act and Amendments 1962 Act 1976 Amendments 1980 Amendments 1994 Amendments Types of Civil Investigative Demands CIDs for Documentary Material Description Originals and Copies Products of Discovery Time Allowed for Production Manner of Production Offer to Discuss Problems Raised by CID with Recipients CIDs for Written Interrogatories CIDs for Oral Testimony Notice Location and Procedure for Taking Testimony Right to Counsel, Objections, Privilege Immunity Witness's Review and Signature of Transcript Witness's Right to a Copy of Transcript Procedures for Issuing CIDs Service of CIDs Service on Domestic Respondents Service on Respondents Situated Abroad Proof of Service Confidentiality and Permitted Uses of CID Materials DOJ Use and Outside Disclosure of CID Materials Authorized by ACPA Division Policy and Practice Concerning Requests for Additional Limitations on Use or Disclosure of CID Material General Policies Disclosure to Congress Disclosure to the Federal Trade Commission Disclosure in the Context of a CID Deposition Disclosure in Judicial or Administrative Proceedings Agreements Concerning Notice Protective Orders During the Investigatory Stage Discovery/Protective Orders During Proceedings CID Custodians and Deputy Custodians Grounds for Objection and Judicial Proceedings Concerning CIDs General Standards - both Grand Jury and Civil Discovery Standards Apply Objections Based on Procedural Requirements of the Act Objections Based on the Government's Motives Objections Based on Jurisdictional Grounds Objections Based on Pre-existing Protective Orders Miscellaneous Objections Judicial Proceedings to Enforce or Quash CIDs Discovery By CID Recipient Against the Division Appellate Review and Remedy Provisions Return of CID Materials at End of Investigation Criminal Penalties Conducting a Grand Jury Investigation Requesting A Grand Jury Investigation Empaneling and Scheduling the Grand Jury Impounding Orders and Rule 6(e)(3)(B) Notices Issuing Grand Jury Subpoenas Subpoenas Duces Tecum Subpoenas Ad Testificandum Subpoenas for Exemplars Search Warrants Checklist of Procedures for a Grand Jury Session Requests For Statutory Immunity Division Procedures for Processing Requests for Statutory Immunity Division Standards for Seeking Immunity Authorization Informal Immunity Corporate and Individual Leniency Criteria for Corporate Leniency Leniency Before an Investigation Has Begun Alternative Requirements for Leniency Leniency for Corporate Directors, Officers, and Employees Criteria for Individual Leniency Procedure for Conferring Amnesty Requesting Internal Revenue Service Information During a Grand Jury Investigation 1Notification or Approval Procedures in Certain Types of Investigations Notice of Subjects of Sensitive Criminal Investigations Approval of Subpoenas to and Indictment of Members of the News Media and News Organizations Issuance of Subpoenas to Attorneys For Information Relating to the Representation of Clients Notification of Matters Involving Foreign Government Interests 1Investigating Related Criminal Activity Circumstances in Which the Division Investigates Related Criminal Activity Procedures for Obtaining Criminal Division Clearance and Assistance Completing the Investigation and Recommending Civil or Criminal Suit Preparing to Recommend a Case Consultation With Antitrust Division Economists Notification to Prospective Defendants Dual Enforcement Policy ("Petite" Policy) Case Recommendation Procedures Recommending a Non-Merger Civil Action Recommending Merger Cases Recommending a Criminal Case Recommending an Indictment Table of Contents Summary of Offense Proposed Defendants Order of Proof/Summary of the Evidence Summary of the Evidence Against Each Proposed Defendant Persons and Companies Not Recommended for Indictment Weaknesses and Defenses Arguments of Counsel and Staff Responses Victims of the Violation and Staff Compliance with the Victim and Witness Protection Act of 1982 and Related Statutes Recommending a Plea Agreement Procedures for Review of Case Recommendations Other Investigative Functions Business Review Procedures Origin and Development of Procedures Purpose Manner of Request Processing the Request Timing of Investigation Investigating a Business Review Review Procedures Judicial Interpretation and Review National Cooperative Research and Product Act of 1993 Purpose and Policy Notification to Justice Department and the FTC Review by Section, Task Force, or Field Office Original Notifications Supplemental Notifications Reporting Requirements NCRPA Worksheet Preparation of the Federal Register Notice Sample Federal Register Notice Notice to Parties Sample Transmittal Letter Sample Declaration Review and Publication of Notice Reports to Congress Annual Report by the Attorney General Triennial Report by the Attorney General Review of Antitrust Treatment Under Foreign Laws Export Trade Certificates Overview of the ETC Act Initial Processing of an Application Requests for Supplemental Information Informal Requests Formal Requests CIDs Confidentiality of Information Analysis of the Application Recommendation and Review Decision by the Assistant Attorney General ETC Notebook Judgment Monitoring, the JEMIS System and Judgment Enforcement Judgment Monitoring JEMIS and Reporting Requirements Judgment Enforcement Judgment Modifications and Terminations Phase One--Obtaining Approval to Consent to Modification or Termination Initiation of the Process Recommendation, Review and Applicable Standards Phase Two--Procedures for Termination or Modification Necessary Papers Notice, Publication Costs and Multiple Defendants Review, Filing and Other Procedural Aspects