7-5.100
Investigations
|
Pursuant to 28 C.F.R. Sec. 0.40(a), the Assistant Attorney General in
charge of the Antitrust Division has supervisory authority over all
investigations involving possible violations of the antitrust laws. When a
United States Attorney wishes to conduct such an investigation, he/she must
obtain the approval of the Antitrust Division before beginning. The initial
investigation of a potential antitrust violation is called a preliminary
inquiry.The Antitrust Division's field office chiefs and their designated
liaisons to specific United States Attorney's offices are the United States
Attorney's primary contacts within the Antitrust Division regarding
investigations and litigation. See USAM
7-3.700. The Division's Deputy Assistant Attorney General for Criminal
Enforcement, Room 3214, Main Justice (202-514-3543), may also be
contacted.
7-5.200
Standards for Initiating a Preliminary Inquiry
|
Generally, a preliminary inquiry should be initiated if the facts
presented appear to support a legal theory of an antitrust violation and the
investigation will not duplicate other efforts of the Antitrust Division,
the Federal Trade Commission, or another United States Attorney.
(Investigations of suspected criminal antitrust violations may be initiated,
where appropriate, through a request for grand jury authority rather than
through a request to conduct a preliminary inquiry. See
USAM 7-5.310.)
Based on these general guidelines, a request for preliminary inquiry
authority is reviewed, in the case of violations involving mergers and
acquisitions, by the Antitrust Division's Director of Operations, Room 3214,
Main Justice (202-514-3544), and in all other cases by the Antitrust
Division's Deputy Director of Operations, Room 3208, Main Justice
(202-514-2562). If the request meets these standards and clearance is
obtained from the Federal Trade Commission, see
USAM 7-5.220, preliminary inquiry authority is
granted.
[cited in
USAM 7-5.210]
7-5.210
Making a Request for Preliminary Inquiry Authority
|
If a United States Attorney believes that a matter is appropriate for a
preliminary inquiry, a short memorandum (1-3 pages) should be prepared
describing the nature and scope of the suspect activity. The memorandum
must contain sufficient information to permit the Antitrust Division to
evaluate the request, obtain Federal Trade Commission clearance, and
determine whether any section or field office of the Antitrust Division or
the Federal Trade Commission is investigating, or has investigated, the same
activity. NOTE: An instruction sheet for preparing a Memorandum Seeking
Preliminary Inquiry Authority is in the Antitrust
Resource Manual at 3. This memorandum should be addressed to the
Director or Deputy Director of Operations, Antitrust Division, as noted in
USAM 7-5.200. Approval, subject to Federal
Trade Commission clearance, should take no more than three working days and
may be expedited when necessary.
[cited in
Antitrust Respource Manual 4]
7-5.220
Federal Trade Commission Clearance Procedure
|
All requests to initiate new antitrust investigations must be cleared
with the Bureau of Competition of the Federal Trade Commission, in
accordance with a longstanding inter-agency agreement. The purpose of the
inter-agency clearance is to ensure that the two enforcement agencies, which
have concurrent jurisdiction in certain areas, do not duplicate efforts by
conducting similar or identical investigations. The Office of Operations
will arrange to obtain Federal Trade Commission clearance on behalf of the
United States Attorney. An investigation of criminal conduct, e.g., bid
rigging or price fixing, is invariably and promptly cleared by the Federal
Trade Commission.
[cited in
USAM 7-5.200]
7-5.230
Assistance From the Antitrust Division
|
The discussion of investigating and proving price-fixing and bid-rigging
violations, see USAM 7-4.100,
provides a brief overview of antitrust investigative techniques. In
addition, the Antitrust Division, through its local field offices,
see USAM 7-3.700, can provide advice
regarding investigative techniques and evidentiary issues unique to
antitrust matters.
The Antitrust Division's Economic Litigation Section, Economic
Regulatory Section or Competition Policy Section, collectively the Economic
Analysis Group or EAG, can also provide economic analysis of particular
issues, as well as statistical assistance, if the investigation requires it,
and can serve as, or obtain, expert witnesses.
7-5.300
Antitrust Grand Jury Investigations
|
Pursuant to 28 C.F.R. Sec. 0.40(a), the Assistant Attorney General in
charge of the Antitrust Division must authorize any grand jury investigation
of possible antitrust violations. Consultation with the Deputy Assistant
Attorney General for Criminal Enforcement or the local field office may be
desirable at the time the United States Attorney's Office is formulating a
request for grand jury authorization.
7-5.310
Requesting a Grand Jury Investigation
|
If, based upon evidence initially presented to the United States
Attorney or at the conclusion of a preliminary inquiry, the United States
Attorney believes that there is sufficient evidence to proceed to the grand
jury, the United States Attorney should request authority to conduct a grand
jury investigation from the Assistant Attorney General in charge of the
Antitrust Division. The request for grand jury authority should be in the
form of a brief memorandum sent to the Deputy Assistant Attorney General for
Criminal Enforcement, Room 3214, Main Justice (202-514-3543) for review.
See Antitrust Resource Manual 4 for
instructions on preparing a Memorandum Seeking Grand Jury Authority. If
this grand jury memo initiates the investigation, i.e., if no preliminary
inquiry was required, the Deputy Assistant Attorney General for Criminal
Enforcement will seek Federal Trade Commission clearance based upon the
grand jury request memorandum. The Deputy Assistant Attorney General then
submits it to the Assistant Attorney General,
who approves or disapproves the request. The United States Attorney is
advised promptly of the decision. This approval process generally takes no
more than three working days, and may be expedited where necessary.
In the course of a grand jury investigation of other criminal conduct, a
United States Attorney often also will develop evidence of antitrust
violations. Such evidence may support either inclusion of antitrust counts
in an indictment charging other crimes or indictment on antitrust charges
alone. As soon as such evidence is identified, the United States Attorney
should contact the chief of the local Antitrust Division field office (or
that office's United States Attorney liaison), or the Deputy Assistant
Attorney General for Criminal Enforcement, to apprise him/her of the
possible antitrust violations, and to determine that no office of the
Antitrust Division or the Federal Trade Commission is investigating the same
conduct. Although, under these circumstances, further development of the
evidence regarding the antitrust violations through the grand jury does not
require authorization by the Assistant Attorney General, subsequent
consideration of any proposed antitrust cases or counts may be expedited by
keeping the Antitrust Division generally apprised
of antitrust developments.
[cited in
USAM 7-5.200]
7-5.400
Completing the Investigation and Recommending Civil or Criminal
suits
|
As the United States Attorney develops evidence that may establish a
violation of the antitrust laws, he/she should begin to determine what count
or counts will be recommended and how the investigation might be concluded.
The Deputy Assistant Attorney General for Criminal Enforcement, field office
chiefs and liasons, and other contacts within the Antitrust Division are
available for consultation in this regard.
Three tasks usually are undertaken at the conclusion of an
investigation. First, the United States Attorney determines whether to
proceed with criminal or civil antitrust charges and selects the defendants
to be recommended for prosecution. Second, the United States Attorney may,
at his/her discretion, give counsel for the potential antitrust defendants
an opportunity to present their views to the prosecutors. Finally, the
United States Attorney and the staff prepare a brief prosecution memorandum
and pleadings for the antitrust charges. See
USAM 7-5.410. This fact memorandum should be
received by the Deputy Assistant Attorney General for Criminal Enforcement
if criminal charges are contemplated, or the Director or Deputy Director of
Operations if civil charges are contemplated, at least two weeks before the
case is scheduled to be filed.
Upon receipt of the fact memorandum, the Deputy Assistant Attorney
General for Criminal Enforcement, the Director of Operations, or Deputy
Director of Operations will assess the merits of the antitrust charges.
This review will focus primarily upon whether the facts as set forth meet
the legal and policy requirements for an antitrust violation. Assessment of
the weight of the evidentiary support for the antitrust charges and
litigation strategy will be left to the United States Attorney. The
Assistant Attorney General in charge of the Antitrust Division makes the
final decision whether to seek an indictment, file a civil suit or decline
prosecution.
[cited in
USAM 7-5.500]
7-5.410
Preparation of Fact Memorandum
|
The fact memorandum should be prepared by the United States Attorney's
staff as a brief summary statement of the factual and legal basis for the
proposed charges. See Antitrust Resource Manual
at 5 for instructions on preparing a Criminal Case Fact Memorandum. The
purpose of the fact memorandum is to serve as a vehicle for consideration of
the case in the review process, including identification of any antitrust
policy issues that the case may raise.
The fact memorandum should be prepared after any meetings with defense
counsel, and, if appropriate, allowing the "targets" to appear before the
grand jury.
The memorandum should be forwarded to the Antitrust Division accompanied
by all pleadings (indictments, informations or complaints as well as any
proposed plea agreements or consent decrees) in the matter and a draft press
release.
Sample pleadings and press releases are available from the Deputy Assistant
Attorney General for Criminal Enforcement, the Office of Operations and from
the field offices.
[cited in
USAM 7-5.400]
7-5.420
Civil Actions Generally
|
Civil antitrust actions are usually brought under Sections 1 and 2 of
the Sherman Act (15 U.S.C. Secs. 1 and 2), Section 7 of the Clayton Act
(merger cases) (15 U.S.C. Sec. 18), and Section 4A of the Clayton Act
(Federal antitrust damage actions) (15 U.S.C. Sec. 15a). Few civil actions
are initiated by United States Attorneys. Given the more complex issues of
antitrust policy and analysis involved, civil cases generally rely upon
"Rule of Reason" analysis. See USAM
7-4.100; USAM 7-4.200. Such analysis
requires substantial economic input and evaluation. The Director or Deputy
Director of Operations, or the local Antitrust Division field office, can
provide advice to United States Attorneys contemplating the filing of a
civil antitrust action.
7-5.500
Procedures for Review of Case Recommendations
|
After drafting the fact memorandum, pleadings and a press release, the
package is sent to the Deputy Assistant Attorney General for Criminal
Enforcement, or for civil cases to the Director or Deputy Director of
Operations, for review. (As previously noted, sample pleadings and press
releases are available from the Deputy Assistant Attorney General for
Criminal Enforcement, the Office of Operations, and the field offices.)
Upon review, and after consultation with the United States Attorney, the
Deputy Assistant Attorney General for Criminal Enforcement, or the Director
or Deputy Director of Operations, will submit his/her recommendation to the
Assistant Attorney General. This process generally will take no more than
ten working days and may be expedited where necessary. See
USAM 7-5.400.
Only in rare circumstances, where significant and novel issues are
raised, will counsel for the potential defendants be provided with an
opportunity to meet with the Assistant Attorney General. Generally, the
Deputy Assistant Attorney General for Criminal Enforcement (or another
appropriate Division official in cases involving civil matters) will meet
with counsel for a proposed defendant, if such a meeting is requested.
The United States Attorney will be informed immediately when a final
decision is made by the Assistant Attorney General. The approval papers,
signed pleadings, and any other additional information that will be required
for filing will be sent to the United States Attorney.
When the case is filed, the United States Attorney's office should
immediately inform the Deputy Assistant Attorney General for Criminal
Enforcement (or for civil cases the Director or Deputy Director of
Operations) of that fact so that he/she may authorize issuance of the press
release. The United States Attorney's office also should inform the Deputy
Assistant Attorney General for Criminal Enforcement (or the Director or
Deputy Director of Operations in civil cases) of the docket number and the
judge assigned to the case.
7-5.600
Litigation
|
Pursuant to 28 C.F.R. Sec. 0.40(a), the Assistant Attorney General in
charge of the Antitrust Division has supervisory authority over all
antitrust suits brought by the Department. Although the United States
Attorney's office handling a particular case is responsible for all
pre-trial and trial activities, consultation with the Deputy Assistant
Attorney General for Criminal Enforcement in criminal cases, or the Director
or Deputy Director of Operations in civil cases, is required whenever issues
of antitrust policy or novel issues of antitrust law are raised in
litigation.
7-5.610
Disposition of Antitrust Actions
|
Disposition of a criminal antitrust case by plea or dismissal must be
approved by the Assistant Attorney General in charge of the Antitrust
Division after review by the Deputy Assistant Attorney General for Criminal
Enforcement. Disposition of a civil antitrust action by settlement or
dismissal must also be approved by the Assistant Attorney General in charge
of the Antitrust Division after review by the Director or Deputy Director of
Operations. Such approval may be obtained orally through the Deputy
Assistant Attorney General for Criminal Enforcement or the Director or
Deputy Director of Operations.
7-5.611
Plea Agreements
|
Plea agreements require the approval of the Assistant Attorney General
where counts are being dismissed, companies are being promised no further
prosecution, or particular sentences are being recommended. The Deputy
Assistant Attorney General for Criminal Enforcement must be advised of any
proposed plea agreement before it is finalized.
7-5.612
Settlements
|
Civil settlements require the approval of the Assistant Attorney General
where charges are being dismissed, particular injunctive relief is being
recommended, or a claim for damages is being compromised. Civil antitrust
settlements must also follow the procedures established by the Antitrust
Procedures and Penalties Act. See 15 U.S.C. Secs. 16(b)-(h). The
Director or Deputy Director of Operations must be advised of any proposed
civil settlement before it is finalized.
7-5.613
Sentencing Recommendations
|
Sentencing recommendations should be consistent with the U.S. Sentencing
Commission Guidelines for sentencing antitrust violations. USSG ڈR1.1.
Sentencing recommendations must be approved by the Assistant Attorney
General, through the Deputy Assistant Attorney General for Criminal
Enforcement, prior to their submission to the Probation Office.
7-5.620
Appeals
|
The Antitrust Division's Appellate Section is responsible for handling
all appeals in antitrust cases. At the conclusion of a case that may
involve an appeal, the United States Attorney should consult with the
Division's Appellate Section through the Deputy Assistant Attorney General
for Criminal Enforcement for criminal cases, or the Director or Deputy
Director of Operations for civil cases.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |