Spotting an Antitrust Problem and Responding to an Investigation: A Practical Checklist

Business > Antitrust and Competition | Published 26 July 2026 - Updated 9 August 2026 | UpLaw - uplaw.us

How to Use This Checklist

Work Part 1 if nothing has happened yet. Go directly to Part 5 if a subpoena, civil investigative demand, or agent is already at the door. Doctrine behind any item is explained in the comprehensive guide; the plain-language introduction is how antitrust law actually works.

⚠ One rule before all others. If you believe your company may be part of an agreement with competitors about price, wages, bids, customers, or territories, stop reading and call antitrust counsel today. The Antitrust Division's leniency program has exactly one winner per conspiracy, and it is whoever arrives first.

Part 1 — Mapping Where the Risk Actually Lives

☐ List every place your people meet competitors. Trade associations, standards bodies, certification programs, industry conferences, buying cooperatives, safety committees, charitable boards, and shared-customer meetings.

☐ Identify every employee with pricing authority. Include anyone who can approve a discount, set a quote, or authorize a rebate.

☐ Identify every employee who negotiates wages or recruits. Employer-side wage and hiring agreements are prosecuted under 15 U.S.C. § 1 as market allocation.

☐ List every firm that is simultaneously a customer, supplier, and competitor. These "coopetition" relationships generate the hardest information-sharing questions.

☐ Inventory every exclusive, requirements, or minimum-purchase contract. Note share of customer requirements covered, duration, and termination rights — the factors that decide foreclosure analysis under 15 U.S.C. § 14.

☐ Inventory every joint venture, teaming agreement, and consortium. For each, record what is genuinely integrated and what is merely coordinated.

☐ Identify any market where your share may exceed fifty percent. Above that line, ordinary competitive tactics acquire 15 U.S.C. § 2 risk.

☐ Check board seats against 15 U.S.C. § 19. Any person serving on two competing corporations' boards above the thresholds must resign from one.

☐ Flag every third-party pricing or revenue-management tool. Ask the vendor, in writing, whether the model ingests non-public data from your competitors.

Part 2 — Trade Associations and Meetings

☐ Require a written agenda circulated in advance. No agenda, no attendance.

☐ Confirm counsel will be present for any meeting touching commercial subjects.

☐ Verify the association has an antitrust statement read or distributed at each meeting.

☐ Confirm minutes are kept and that objections are recorded verbatim.

☐ Brief your attendee on the escape script before they go. The words: "I'm not able to discuss that. If it continues, I'll have to leave." Then leave.

☐ Require a same-day report from every attendee: topics covered, anything raised that touched price, capacity, wages, bids, customers, or territory.

☐ Never attend a "members only" side meeting that is not on the agenda and not minuted.

☐ Treat social events as meetings. Dinners, golf outings, and hospitality suites produce more antitrust evidence than conference rooms do.

☐ If something improper is said, act the same day: leave, report to counsel, send a written objection to the association, and document it. Silence plus later conforming conduct is the standard proof of assent.

Part 3 — Information Exchange and Benchmarking

☐ Confirm data is historical — typically at least three months old.

☐ Confirm data is aggregated across enough participants that no individual company's figures can be reverse-engineered.

☐ Confirm data is anonymized and that no participant dominates any reported statistic.

☐ Confirm an independent third party collects and publishes it. Direct competitor-to-competitor exchange is the highest-risk structure.

☐ Confirm the output is available to buyers as well as sellers.

☐ Never exchange current prices, future pricing intentions, bid plans, capacity plans, or customer-specific terms. No aggregation cures these.

☐ For compensation benchmarking, apply the same rules. Wage surveys have been the basis of criminal charges when conducted directly among employers.

☐ Document the business purpose of any exchange before joining it.

☐ Re-audit any survey you have participated in for more than two years. Surveys drift toward specificity over time.

Part 4 — Contracts, Distribution, and Hiring

☐ Search every template and executed agreement for no-poach, no-hire, and non-solicit-of-employees language. Standalone no-poach clauses between competitors are criminal; ancillary clauses must be reasonably necessary to a legitimate collaboration and narrowly limited in scope, geography, and duration. Related employee-mobility restrictions are covered in trade secrets and restrictive covenants.

☐ Decide whether your resale pricing approach is a policy or an agreement. A unilateral policy is announced and enforced without seeking assent. The moment anyone asks a reseller to "confirm," it is an agreement.

☐ Route all reseller pricing complaints to one designated person. That person should never tell a complaining dealer what action will be taken.

☐ Review exclusive dealing terms for foreclosure share and duration. Shorter and terminable is safer.

☐ Review bundled and loyalty discounts. Ask whether an equally efficient rival could match the effective price on the contestable share.

☐ Check price differences among competing buyers of the same goods against 15 U.S.C. § 13. Confirm each difference rests on cost justification, good-faith meeting of competition, or changing conditions, and that the basis is documented contemporaneously.

☐ Check promotional allowances and co-op advertising for proportional availability to all competing customers.

☐ Review any acquisition of a competitor before the letter of intent. Assess overlap, likely market definition, and reportability under 15 U.S.C. § 18a with 16 C.F.R. Part 801, Part 802, and Part 803.

☐ Discipline deal documents. Every board deck, banker memo, and synergy model describing the rationale will be produced to the agencies. The diligence sequence generally is in buying and selling a business.

☐ Confirm gun-jumping controls. Until closing, the parties remain independent competitors: no shared pricing, no joint customer decisions, no integration of sales forces.

Part 5 — The First Twenty-Four Hours of an Investigation

☐ Identify what arrived. A grand jury subpoena (criminal, DOJ), a civil investigative demand (DOJ civil or FTC), a Second Request (merger review), or a search warrant. The response differs for each.

☐ Issue a litigation hold immediately — same day, in writing, to every plausible custodian. Suspend automatic deletion across email, chat, collaboration tools, text messaging, and voicemail. Follow the mechanics in issuing a litigation hold and preserving ESI.

☐ Preserve personal devices used for business. Text messages and ephemeral messaging apps are where the worst evidence lives, and their loss is treated as spoliation.

☐ Retain outside antitrust counsel before anyone speaks to the government.

☐ Instruct employees in writing: do not discuss the matter outside counsel; do not delete anything; you may decline to be interviewed; you may have counsel present; the company will provide counsel.

☐ Do not send a company-wide narrative email. It will be produced.

☐ Assess leniency within days, not weeks. Determine whether the company may be first to report. This decision belongs to counsel and the board, not to management alone.

☐ Identify individuals with potential exposure and arrange separate counsel. Joint representation collapses the moment interests diverge.

☐ Calendar the response date and begin negotiating scope immediately. Custodian lists, date ranges, and search terms are almost always negotiable; the return date usually is too.

☐ Consider notification obligations — insurers, lenders, auditors, and, for public companies, disclosure counsel.

Part 6 — If Agents Arrive With a Search Warrant

☐ Do not obstruct, and do not consent to anything beyond the warrant. Consent expands the search; refusal to consent is lawful and should be stated politely and once.

☐ Ask for and photograph the warrant and the accompanying affidavit if provided. Note the issuing court, the offenses listed, and the categories of items authorized.

☐ Call counsel immediately and ask agents to wait; they need not agree, but the request is proper and should be documented.

☐ Assign one person to shadow each search team and log what is examined and seized, room by room.

☐ Assert privilege audibly over attorney communications and legal files, and ask that they be segregated for a taint review.

☐ Tell employees, out loud and in front of witnesses, that they may decline to be interviewed, may leave, and may have counsel present, and that the company will pay for counsel.

☐ Do not coach anyone. Suggesting what an employee should say converts an antitrust exposure into an obstruction charge, a dynamic explained in white collar and financial crime.

☐ Obtain the inventory receipt before agents leave and reconcile it against your own log the same day.

☐ Do not restore, wipe, reimage, or "clean up" any device afterward. Preservation obligations attach immediately.

☐ Debrief with counsel that evening while memories are fresh; have each observer write a contemporaneous account.

Part 7 — Responding to a Civil Investigative Demand or Second Request

☐ Diary every deadline and confirm whether the instrument suspends a merger waiting period under 15 U.S.C. § 18a.

☐ Meet and confer early on scope. Agencies routinely narrow custodians, date ranges, and specifications when presented with burden data.

☐ Negotiate search terms with validation. Run sampling to show hit rates and false-positive burden before agreeing.

☐ Preserve and collect structured data — pricing databases, ERP extracts, CRM records — not just email. Economic analysis runs on transaction data.

☐ Build a privilege log discipline from day one. The volume makes retroactive logging impractical; the standards mirror those in civil discovery.

☐ Prepare witnesses for investigational hearings. CID testimony is under oath, transcribed, and usable later.

☐ Track the certification requirement. Substantial compliance certifications are signed by an officer and carry personal exposure if inaccurate.

☐ Assume everything produced reaches private plaintiffs eventually. Under 15 U.S.C. § 16, a government judgment is prima facie evidence in later private suits, and follow-on class actions are filed within days of any public resolution.

Part 8 — Assessing Exposure Honestly

☐ Classify the conduct. Horizontal agreement on price, wages, bids, customers, or territory is per se and criminal. Everything else is judged on effects.

☐ Identify the relevant market and estimate share, entry barriers, and the plausibility of a monopolization theory.

☐ Quantify the potential overcharge. Private damages are trebled under 15 U.S.C. § 15, with mandatory fees, and conspirators are jointly and severally liable with no contribution.

☐ Map the limitations exposure under 15 U.S.C. § 15b, remembering that each overcharge payment restarts the clock and that concealment tolls it. Accrual mechanics are set out in statutes of limitations and repose.

☐ Identify the direct purchasers. Federal damages belong to them; indirect purchasers sue under state repealer statutes.

☐ Anticipate parallel state enforcement. State attorneys general enforce both federal and state law and often reach conduct federal law does not.

☐ Anticipate follow-on class litigation and read the certification framework in class actions and mass claims.

☐ Check foreign exposure. Competition authorities abroad conduct their own investigations, and leniency must be sought jurisdiction by jurisdiction.

Part 9 — Building the Compliance Program

☐ Write the rules in sentences an employee can repeat. Five prohibitions, not a treatise.

☐ Train the people who touch competitors, not the whole company equally.

☐ Run live scenarios, including the association dinner and the "let's compare notes" phone call.

☐ Create pre-clearance triggers: information exchanges, joint ventures, association leadership, exclusive dealing, acquisitions of competitors, and any agreement mentioning hiring.

☐ Teach document hygiene. Ban market-domination rhetoric; require accuracy over enthusiasm; never instruct deletion.

☐ Publish a reporting channel with anti-retaliation protection and a documented path to antitrust counsel within one business day.

☐ Audit annually and record what was tested, what was found, and what changed.

☐ Include antitrust in onboarding for sales, procurement, and HR, and in every acquisition integration plan.

☐ Keep evidence that the program operates. Attendance records, objection memos, pre-clearance decisions, and audit reports are what distinguish a program from a binder.

Part 10 — Sector-Specific Add-Ons

☐ Healthcare. Physician networks that jointly negotiate rates require clinical or financial integration; messenger models must be structured so that no collective negotiation occurs.

☐ Government contracting. Teaming and subcontracting arrangements among potential prime bidders raise bid-rigging questions; see government contracting.

☐ Franchising. System-wide pricing and intra-brand no-hire clauses have both drawn enforcement; the relationship framework is in franchising.

☐ Agriculture. Cooperative marketing is partially exempt, but cooperation with non-member processors is not; see agriculture and rural law.

☐ Technology platforms. Most-favored-nation clauses, app store rules, and self-preferencing all sit in active enforcement territory; see platform liability and content moderation.

☐ Professional licensing boards. Boards controlled by active market participants lack immunity absent active state supervision; see professional licensing and occupational discipline.

☐ Labor-intensive services. Wage benchmarking and no-poach practices are the leading source of criminal exposure in staffing, healthcare, and logistics.

Part 11 — Documents to Assemble

☐ Organizational chart with pricing authority marked. ☐ List of trade association memberships, with agendas and minutes for two years. ☐ All benchmarking and survey participations, with methodology documents. ☐ Distribution agreements, MAP and pricing policies, and enforcement correspondence. ☐ All agreements containing employee non-solicitation or no-hire terms. ☐ Board and investor materials describing market position or competitors. ☐ Pricing databases and transaction-level sales extracts. ☐ Prior antitrust advice, opinions, and audit reports. ☐ Insurance policies, with attention to whether antitrust defense costs are covered. ☐ Litigation hold notices and acknowledgments.

Part 12 — Decision Trees You Can Run in Ten Minutes

Is this conversation dangerous?

☐ Is the other person a competitor? If yes, continue. If the person works for a customer or supplier who does not compete with you, the risk profile changes but does not vanish — a supplier can be a hub connecting competing spokes.

☐ Is the topic price, cost components, discounts, surcharges, capacity, output, bids, customers, territories, wages, benefits, or hiring? If yes, stop the conversation. Those topics are the entire subject matter of 15 U.S.C. § 1 prosecutions.

☐ Did anyone propose a common course of action? If yes, you must object audibly, leave, and report the same day. There is no version of this where waiting improves your position.

☐ Was anything said that you would not want read aloud to a jury? Write a contemporaneous memo to counsel describing what happened, and mark it privileged.

Is this restraint per se or rule of reason?

☐ Are the parties competitors at the same level? If no, the restraint is vertical and almost certainly judged on effects under 15 U.S.C. § 1 and, for goods, 15 U.S.C. § 14.

☐ Does the agreement set, stabilize, or limit price; allocate customers, territories, or products; rig bids; or fix wages or hiring? If yes, it is per se unlawful and criminal, and no justification is admissible.

☐ Is the restraint ancillary to a legitimate integration that creates something neither party could produce alone? If yes, rule of reason applies, but the restraint must be reasonably necessary and no broader than the collaboration requires.

☐ If rule of reason applies, can you define the relevant market and estimate share? Without that, neither side can evaluate the claim.

Does this deal need a filing?

☐ Is there an acquisition of voting securities, non-corporate interests, or assets? Only acquisitions are reportable; ordinary supply contracts are not.

☐ Does the transaction exceed the annually adjusted size-of-transaction threshold, and where applicable the size-of-person thresholds, under 15 U.S.C. § 18a?

☐ Does an exemption in 16 C.F.R. Part 802 apply — ordinary course acquisitions, certain real property, foreign assets below thresholds, or the investment-only exemption?

☐ If reportable, confirm the content requirements of 16 C.F.R. Part 803 and the definitional rules of 16 C.F.R. Part 801, including aggregation across prior acquisitions.

☐ If not reportable, document the antitrust analysis anyway. 15 U.S.C. § 18 applies regardless of filing obligation, and post-closing challenges do happen.

☐ Confirm no director or officer overlap will violate 15 U.S.C. § 19 once the transaction closes.

Is this price difference defensible?

☐ Are you selling commodities — tangible goods — to two or more buyers who compete with each other? If not, 15 U.S.C. § 13 does not apply.

☐ Are the goods of like grade and quality? Physical differences matter; label differences generally do not.

☐ Is the difference cost-justified, with contemporaneous accounting showing savings in manufacture, sale, or delivery?

☐ Is it a good-faith response to a specific competitive offer? Record the source, date, and content of the competing quote at the time you match it — not later.

☐ Are promotional allowances, co-op funds, and services offered on proportionally equal terms to every competing customer, in a form each can practically use?

Part 13 — What to Do in the First Week After Self-Discovery

☐ Day one: preserve. Hold notice out, auto-deletion suspended, personal devices identified.

☐ Day one: contain. Instruct the implicated employees to stop the conduct immediately and to have no further contact with the competitor on the subject.

☐ Day two: scope. Counsel interviews a narrow set of people under privilege. Do not survey broadly; do not email a description of the problem.

☐ Day two to three: leniency analysis. Determine whether the company plausibly qualifies as the first reporter, whether it took the leading role, and whether it can offer full, continuing cooperation.

☐ Day three: individual counsel. Employees with exposure need their own lawyers before they are interviewed by anyone.

☐ Day four: quantify. Estimate affected commerce and the overcharge period. This drives both fine exposure and the trebled private exposure under 15 U.S.C. § 15.

☐ Day five: decide and document. Whether to report, and why. Board-level decision, recorded.

☐ Ongoing: remediate. Terminate the conduct, discipline participants, fix the control that failed, and preserve evidence that you did all three. Remediation is a formal factor in charging and penalty decisions, and it is also the only part of this process that improves the business.

⭐ The single most valuable habit. Contemporaneous memos. A one-paragraph note written the day a competitor said something improper — describing what was said, that you objected, and that you left — is worth more than any amount of later testimony. Write it, send it to counsel, and keep it.

Part 14 — Common Mistakes This Checklist Is Designed to Prevent

☐ Treating silence as neutrality. In an association meeting, saying nothing while competitors discuss price is evidence of assent, not evidence of innocence. Object out loud and leave.

☐ Assuming small size confers safety. Neither 15 U.S.C. § 1 nor state antitrust statutes contain a size threshold, and local bid-rigging cases are a staple of criminal enforcement.

☐ Believing a good reason cures a per se violation. Rising input costs, unsustainable margins, and "irresponsible discounting" are explanations, not defenses.

☐ Confusing a filing obligation with legality. A transaction below the 15 U.S.C. § 18a thresholds is still fully subject to 15 U.S.C. § 18.

☐ Letting sales staff answer dealer complaints. One reply asking a discounter to "confirm" a price converts policy into agreement.

☐ Waiting to see whether an investigation goes away. Leniency is a race, limitations are tolled during government action under 15 U.S.C. § 16, and delay only shrinks the available options.

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