Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The DoJ's antitrust investigations may arise from complaints from consumers or competitors, leniency applications, the DoJ's monitoring of private litigation, pre-merger notification filings or other sources. In order to open an investigation, staff attorneys prepare a memorandum setting forth the basis for investigation. Once clearance from the FTC and approval by the DoJ are obtained, preliminar …

Department of Justice civil investigations

The DoJ's antitrust investigations may arise from complaints from consumers or competitors, leniency applications, the DoJ's monitoring of private litigation, pre-merger notification filings or other sources. In order to open an investigation, staff attorneys prepare a memorandum setting forth the basis for investigation. Once clearance from the FTC and approval by the DoJ are obtained, preliminary investigation begins.

The DoJ frequently seeks voluntary cooperation in the early stages of civil investigation. The DoJ is authorized under the Antitrust Civil Processes Act of 1962, (15 U.S.C. §§ 1311-1314), prior to the filing of a complaint, to serve a civil investigative demand (CID) on any person to compel the production of documents, responses to written interrogatories or oral testimony where there is reason to believe the person may have information or be in custody of documents relevant to an antitrust violation. The demand must specifically state the nature of the alleged antitrust violation, and prescribe a reasonable period for response, not less than 20 days after service of the demand.

The recipient of a CID may initiate proceedings in the Federal District Court to set aside or modify the CID (15 U.S.C. § 1314(b)). The time period for complying is suspended while the petition is pending before the court.

When the DoJ suspects conduct that would constitute a per se violation of Section 1 of the Sherman Act, it normally begins a grand jury investigation. The first step is for the Assistant Attorney General to issue letters of authority to DoJ staff attorneys so that they can conduct a grand jury investigation, either through a regularly sitting grand jury or through special grand juries.

The DoJ often enlists the assistance of the Federal Bureau of Investigation (FBI) to interview witnesses, conduct electronic surveillance, and execute search warrants (which are issued by a federal judge or magistrate and are directed at specific files or papers believed to constitute evidence of a criminal offense).

The grand jury subpoena is the primary investigative tool in criminal investigations. Grand jury subpoenas may be used both to gather documents and to command testimony. They can be issued anywhere in the United States and can reach US citizens residing in foreign countries. A grand jury subpoena expires at the end of the term of the grand jury or upon its discharge. A motion to quash or modify the subpoena may be brought before the district court, but the breadth and complexity of antitrust investigations have generally been held to justify broad discovery.

Under the Federal Rules of Criminal Procedure, grand jury proceedings are secret. A witness who refuses to testify before the grand jury may be compelled to testify under a grant of immunity. “Use immunity,” whereby testimony and leads derived from that testimony cannot be used against the witness has replaced “transactional immunity,” which totally precluded prosecution of a witness.

During the final stages of a grand jury investigation, the DoJ will issue target letters to potential defendants informing them that they are the targets of a grand jury investigation. Defendants are entitled to testify before the grand jury but rarely take advantage of this since they would be required to submit to cross-examination and to waive the privilege against self-incrimination. The prosecutor will summarize the case and ask the grand jury to return an indictment. If the grand jury votes to indict, the judge will issue a warrant or summons to compel the defendant to appear at an arraignment.

Department of Justice criminal investigations

Like DoJ investigations, investigations by the FTC may arise from requests by private parties, governmental entities, or from staff initiatives (16 C.F.R. § 2.1). An initial phase investigation that does not involve compulsory process may be initiated by staff without FTC approval. After 100 hours of staff work on an initial phase investigation, the recommendation to proceed with a full investigation must be received and approved by the appropriate bureau.

There are four means of pre-complaint compulsory process that may be used in addition to voluntary means. Each requires authorization by an FTC resolution. The FTC may, first, require the filing of annual or special reports (15 U.S.C. § 46(b)), or second, issue access orders permitting on-site inspection of documentary evidence (15 U.S.C. § 49). Third, the FTC is authorized to issue subpoenas in cases involving unfair methods of competition. Fourth, in cases relating to unfair or deceptive practices, the civil investigative demand (CID) has replaced the subpoena (15 U.S.C. § 57b-1). The CID combines the power to order production of documents, filing of written reports or responses to interrogatories, and giving oral testimony. The FTC is required to state in the CID the nature of the conduct constituting the alleged unfair or deceptive act or practice, and this allows courts to evaluate whether the information sought is reasonably relevant in case of a challenge. A party may move to quash a CID or subpoena within twenty days after service (16 C.F.R. § 2.7d).

Each of these forms of compulsory process requires the FTC to apply to the District Court for an order requiring compliance (15 U.S.C. § 49). Failure to comply with any of the four types of compulsory process may result in a fine or imprisonment of up to one year if the failure to comply is frivolous or in bad faith (15 U.S.C. § 50).

Production of information is covered by broad provisions for the protection of confidential information, including Section 7A(h) of the Hart-Scott-Rodino Act, (15 U.S.C. § 18a(h)), Sections 21(b) and (f ) of the F TCA, and Commission Rule 4.10(d).

Global Competition Law

1450. Department of Justice civil investigations

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Les notions juridiques connexes

1450. Department of Justice civil investigations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise