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As soon as you have the first hint - no matter the source – of government
interest in any activity in which your company may be engaged, you need to
avail yourself of specialized antitrust representation. General business
counsel are not suitable for this highly specialized area of legal practice.
The risks will be high and mistakes costly. How you deal with this prospect
in terms of company governance matters, public information management,
customer inquiry responses, and with the investigation or case itself will
be critical.
We bring all this background to bear in our representation of companies and
of individuals in antitrust matters. It is important to note that one cannot
assume that company employees, including officers, have identical interests
as those of the company itself. Many business generalists miss the inherent
conflict of interest issues that relate to advising and even interviewing
company personnel. One may no longer simply take for granted that employees
of long tenure have not been reached by enforcement agents or that they have
not thought about deals offered to then by government agencies in exchange
for their cooperation. When the government interviews company employees and
officers, there is always the threat of criminal liability hanging in the
air, even if not explicitly threatened. Great care must be taken in the
handling of this delicate issue. If am employee has been turned by a
government agent, that employee will report whatever is said to him/her by
defense counsel. Confidentiality can be quickly lost.
Assessment of likely liability should a full blown case ensue must be very
early on. Planning to deal with those risks is an immediate concern. Not all
liability issues are clear cut and obvious.
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