Imagine a situation in which executive management is truly unaware of something going on in "the ranks," and one morning the company is served with a subpoena or other investigative inquiry targeted to conduct that carries potential criminal liability.
The current state of the law is that if an employee did almost anything, the company "owns" the responsibility. That the behavior may have been a violation of very strict company policy and somewhat outside his assignment or actual authority matters little today. Think of it as respondeat superior on steroids.
You have missed the opportunity to turn yourself in and blunt some of the hardship. The government has made its own preliminary investigation, including interviews with many witnesses, and a decision has been made that there is apparent criminal activity needing more formal inquiry. In the context of this article, let’s use price fixing as the subject of the investigation.
The way this came to be is that a disgruntled employee of a company that is claimed to be involved in a price fixing conspiracy went to the government and told them everything. Another scenario is that a participant in the alleged conspiracy got drunk and actually bragged about it.
I won’t waste space recounting the actual facts of just about every price fixing conspiracy or the techniques frequently employed to try to conceal them.
The antitrust lawyer you select to handle this for you will "visit" with counsel for the other companies being investigated. The truth of the matter will be known/suspected almost immediately, and the likelihood is that there really has been conspiratorial conduct. If the truth is known before that meeting, your antitrust lawyer should be informed of it before the attorneys’ meeting/conversations.
In the large company price fixing conspiracy situation, there is a lot of time and money spent on things that don’t work and that will probably produce evidence that only shows culpability. Most notable among these is the infamous "pricing study" in which some forensic resource conducts statistical analysis of pricing history data. This is always a waste of money and time, and you are only fooling yourself if you participate, knowing that the facts, when revealed, will be consistent with guilt. Expect the privilege attached to these studies to be lost.
You may have a very short window of cooperation that could get you a break on the criminal prosecution side. If another participating company beats you to the punch, the government may already have what it needs and won’t be that interested in the redundant offerings you may present.
If you got there in time, the policy of the Justice Department is that you will be asked to waive all attorney-client privilege and to refuse to pay the legal defense expenses of the employee(s) in your company who are involved. That makes them better government witnesses, as they customarily lack resources for adequate representation.
There will be civil treble damages lawsuits on behalf of your customers who were over charged. What you give the government will probably be obtained by the plaintiffs in the civil damages lawsuits, one way or another.
There are unusual situations in which your people may not actually have active participants in the scheme. This is the potentiality that has to be uncovered ASAP. This will seriously affect what you provide for the government and what your potential exposure may be in the later civil suits. Again, space does not permit full treatment of how this works.
Do not ever let anyone sell you on having an elaborate antitrust compliance program in your company. Your company HR manual for employees will state your policy regarding all unlawful conduct. Let that be it. The big deal antitrust compliance programs don’t prevent price fixing. Having a big deal compliance program in the face of intentional unlawful conduct only serves to make you seem deceptive, to put it nicely.
This is not work for your customary counsel. This is only for someone who has been through it before.