Toolkit · Business

The Antitrust Compliance and Investigation Response Toolkit

15 U.S.C. § 1

Type
Toolkit
Jurisdiction
National
Date
2026-02-25
Topic
Business

This toolkit collects the working documents an organization needs to run an antitrust compliance program and to survive an investigation. It includes a policy statement in plain language, a trade association meeting protocol, an information-exchange screening form, a unilateral pricing policy template, a no-poach clause audit sheet, and a competitor-contact incident memo. The investigation half provides a first-day response sequence, a litigation hold notice tailored to antitrust preservation, a custodian and data-source inventory, a leniency assessment worksheet, and a scope negotiation agenda for civil investigative demands and second requests. Each form is annotated with the reason it exists and the mistake it prevents. Templates are drafting starting points for counsel, not substitutes for advice on a specific transaction or investigation.

The Antitrust Compliance and Investigation Response Toolkit

Business > Antitrust and Competition | Published 25 February 2026 - Updated 16 August 2026 | UpLaw - uplaw.us

What Is In This Toolkit

Eleven working documents, each preceded by a short note on what it is for. Use them alongside the checklist for sequence, the comprehensive guide for doctrine, and the plain-language article for orientation.

⚠ Templates are starting points. Antitrust outcomes turn on facts, market structure, and jurisdiction. Nothing here substitutes for counsel, and the leniency decision in particular must be made with antitrust counsel within days.

Tool 1 — The One-Page Antitrust Policy

Long policies do not get read. This one fits on a wall.

[COMPANY] ANTITRUST POLICY

We compete hard and we compete alone. These rules are absolute.

1. Never discuss with a competitor: price, pricing formulas, discounts, surcharges, credit terms, costs, capacity, output, bids, customers, territories, wages, benefits, or hiring. 2. Never agree with a competitor to do or not do any of those things — in writing, out loud, by nod, or by silence. 3. If a competitor raises one of those topics, say: "I'm not able to discuss that. If it continues, I'll have to leave." Then leave, and tell Legal the same day. 4. Never tell a reseller what another reseller must charge, and never ask a reseller to confirm a price. 5. Get approval before joining an information exchange or survey, taking an association board seat, signing an exclusive-supply or minimum-purchase agreement, agreeing to any hiring restriction, or acquiring a competitor. 6. Write accurately. No "we own this market," no "let's discipline them," no hyperbole. Assume a jury will read it. 7. Never delete anything in response to a legal issue. Report instead.

Violating these rules can be a felony for you personally. If you are unsure, ask before you act — not after. Questions: [NAME], [EMAIL], [PHONE].

Why it works: it names the seven behaviors that produce nearly all realistic exposure under 15 U.S.C. § 1 and 15 U.S.C. § 2, and it gives employees words to say rather than a doctrine to apply.

Tool 2 — Trade Association Meeting Protocol

BEFORE ☐ Written agenda received and reviewed by Legal. ☐ Association antitrust statement confirmed to be read at the meeting. ☐ Attendee briefed on the escape script. ☐ Confirmation that minutes will be kept.

DURING ☐ Attend only agenda items. Decline unminuted side meetings. ☐ If price, capacity, wages, bids, customers, or territory arises: object audibly, ask that the objection be recorded, and leave. ☐ Treat meals and social events as meetings.

AFTER (same day) ☐ Written report to Legal: attendees, topics, anything sensitive raised, any objection made. ☐ Retain the agenda and minutes.

INCIDENT ESCALATION ☐ Notify Legal within 24 hours. Legal sends a written objection to the association and preserves the record.

Tool 3 — Information Exchange Screening Form

Complete before joining any survey, benchmark, or index.

Question Answer Pass condition
Who collects the data? Independent third party
How old is the data at publication? ≥ 3 months
How many participants per reported statistic? ≥ 5, none dominant
Is any participant identifiable? No
Does it include future or planned prices? Must be no
Does it include bid intentions or capacity plans? Must be no
Is output available to buyers as well as sellers? Yes
Is participation voluntary and non-conditional? Yes
Business purpose (one sentence) Recorded before joining

Any "fail" answer routes to Legal before participation. Compensation surveys use the same form — employer-side wage exchanges have produced criminal charges under 15 U.S.C. § 1.

Tool 4 — Unilateral Pricing Policy Template

Use where the goal is consistent resale pricing without creating an agreement. Federal law reviews minimum resale price maintenance under the rule of reason, but several states retain per se treatment, and a dealer-driven policy is analyzed as horizontal.

[COMPANY] RESALE PRICING POLICY

  1. [Company] unilaterally establishes minimum advertised prices for the products listed in Schedule A. The current schedule is published at [LOCATION] and may be changed by [Company] at any time.
  2. This is a policy, not an agreement. [Company] does not request, and will not accept, any assurance, commitment, or agreement from any reseller regarding resale or advertised pricing.
  3. Resellers remain free to sell at any price they choose. Nothing in this policy restricts a reseller's pricing.
  4. [Company] may, in its sole and unilateral discretion, decline to accept orders from, or discontinue supply to, any reseller that advertises below the published minimum.
  5. [Company] will not discuss this policy with any reseller, will not negotiate its application, and will not reinstate a discontinued reseller in exchange for any promise regarding future pricing.
  6. All questions must be directed in writing to [SINGLE DESIGNATED PERSON]. No sales, marketing, or account personnel is authorized to discuss the policy.

Operating discipline: one designated administrator, no dialogue, no reinstatement bargains, and no sales-force involvement. One email asking a discounter to "confirm" destroys the entire structure.

Tool 5 — No-Poach and Hiring Restriction Audit

☐ Search all templates and executed agreements for: "no-hire," "non-solicitation of employees," "no-poach," "employee non-solicit," "shall not hire," "shall not recruit." ☐ For each hit, record: parties, whether the parties compete for labor, scope, geography, duration, and whether it is ancillary to a legitimate collaboration. ☐ Standalone agreements between competitors are criminal. Remove immediately and escalate. ☐ Ancillary restraints must be reasonably necessary to a legitimate integration and narrowly limited. Document the justification. ☐ Review vendor, staffing, franchise, joint-venture, and M&A agreements — these are where such clauses hide. ☐ Review recruiter instructions and HR policies for informal "we don't recruit from them" practices. ☐ Confirm compensation benchmarking meets the Tool 3 conditions.

Restrictions on employees themselves — as opposed to agreements among employers — are analyzed under different law; see trade secrets and restrictive covenants and the trade secret and restrictive covenant toolkit.

Tool 6 — Competitor Contact Incident Memo

Write this the same day. It is the single most valuable document in an antitrust file.

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION TO: [General Counsel] FROM: [Name] DATE/TIME: [exact]

  1. Setting: [call / meeting / dinner / conference], location, who was present, who initiated.
  2. What was said: verbatim where possible, especially any reference to price, capacity, bids, customers, territories, wages, or hiring.
  3. What I said and did: exact words of any objection; whether I left; when.
  4. Anything in writing: texts, chats, emails, notes, business cards, napkins — all preserved and attached.
  5. Any subsequent conduct: any change in our pricing or practices after the contact, and why.
  6. Others who may know: names.

Tool 7 — First-Day Investigation Response Sequence

HOUR 0–2 ☐ Identify the instrument: grand jury subpoena, CID, Second Request, or search warrant. ☐ Notify General Counsel and retain outside antitrust counsel. ☐ Freeze auto-deletion across email, chat, collaboration tools, voicemail, and mobile messaging.

HOUR 2–8 ☐ Issue the litigation hold (Tool 8). ☐ Build the custodian and data-source inventory (Tool 9). ☐ Send the employee instruction notice (Tool 10). ☐ Calendar the response date; open a scope-negotiation file.

DAY 1–3 ☐ Narrow privileged interviews by counsel only. No broad internal surveys. ☐ Begin the leniency assessment (Tool 11). ☐ Arrange separate counsel for individuals with exposure. ☐ Notify insurers and check coverage for antitrust defense costs.

DAY 3–10 ☐ Meet and confer with the agency on custodians, date ranges, and search terms. ☐ Preserve and collect structured transaction data, not just documents. ☐ Assess follow-on private exposure under 15 U.S.C. § 15 and limitations under 15 U.S.C. § 15b.

Tool 8 — Antitrust Litigation Hold Notice

Antitrust holds are broader than ordinary holds because pricing evidence lives in chat and text, and because the relevant period usually predates the investigation by years.

LEGAL HOLD NOTICE — IMMEDIATE ACTION REQUIRED

[Company] has received [describe instrument] concerning [subject]. You must preserve all potentially relevant information.

PRESERVE, from [START DATE] to the present:

  • Email, calendar entries, and contacts
  • Instant messages and chat (including any ephemeral or disappearing-message tools)
  • Text messages and messaging apps on personal devices used for work
  • Voicemail and call logs
  • Documents, spreadsheets, presentations, and notes — including handwritten notes and notebooks
  • Pricing databases, quote systems, CRM and ERP records, and transaction data
  • Trade association materials, agendas, minutes, and survey participations
  • Travel and expense records showing meetings with competitors

SUBJECT MATTER: pricing, discounts, surcharges, bids, capacity, output, customers, territories, wages, hiring, and any communication with [LIST COMPETITORS].

YOU MUST NOT: delete, alter, archive, wipe, reimage, or "clean up" anything; change retention settings; or discuss this notice outside Legal.

Acknowledge receipt by [DATE] using [LINK]. Questions to [COUNSEL].

Preservation mechanics generally are covered in issuing a litigation hold and preserving ESI and the civil discovery and evidence preservation toolkit.

Tool 9 — Custodian and Data Source Inventory

Field Entry
Custodian name, title, dates in role
Reports to / supervises
Pricing authority (yes/no, limits)
Competitor contact (associations, prior employers, personal ties)
Devices: laptop, desktop, phone (company/personal), tablet
Messaging tools used, including ephemeral
Personal email used for business (yes/no)
Departed employee? Where is the mailbox and device?
Hold acknowledged (date)

Separately inventory systems: ERP, CRM, quoting, rebate administration, revenue management, contract repository, HR compensation system, and any third-party pricing tool. Note whether any tool ingests competitor data — the algorithmic hub problem discussed in the comprehensive guide.

Tool 10 — Employee Instruction Notice

TO ALL EMPLOYEES RECEIVING THIS NOTICE

  1. [Company] has received [instrument]. Preserve everything (see the legal hold you received separately).
  2. You may be contacted by government agents, possibly at home or outside work hours.
  3. You are not required to speak with them. You may decline, and you may end an interview at any time.
  4. You may have a lawyer present. [Company] will provide and pay for counsel for you. Contact [NAME] to arrange it.
  5. If you do speak, tell the truth. Making a false statement to a federal agent is a separate crime.
  6. Do not destroy, alter, or hide anything. Do not encourage anyone else to.
  7. Please notify [NAME] if you are contacted, so we can support you. You are not required to do so, and you will not be penalized either way.
  8. No retaliation. No one will be disciplined for speaking with the government or for reporting a concern.

Item 7 must be phrased exactly this way. A demand that employees report contacts, or a suggestion that they should not cooperate, is itself obstruction — a risk explored in white collar and financial crime and the white collar investigation response toolkit.

Tool 11 — Leniency Assessment Worksheet

Complete with antitrust counsel within days. The Antitrust Division's corporate leniency policy provides non-prosecution to the first qualifying reporter of a conspiracy; there is one such slot.

☐ 1. Is there a conspiracy? Describe the agreement, participants, subject matter, and period. ☐ 2. Has the Division already received information about it? Counsel inquires through the marker process. ☐ 3. Did the company take prompt and effective action to terminate upon discovery? Record dates and steps. ☐ 4. Does the company report with candor and completeness, and will it provide full, continuing, complete cooperation? ☐ 5. Is the report truly corporate, rather than an individual acting alone? ☐ 6. Will the company make restitution to injured parties where possible? ☐ 7. Did the company coerce others to participate, or was it the leader or originator? These facts can disqualify. ☐ 8. Foreign authorities: which jurisdictions require separate applications, and in what order? ☐ 9. Individual coverage: which employees would be covered, and which need separate counsel now? ☐ 10. Civil exposure modeling: affected commerce, overcharge estimate, trebling under 15 U.S.C. § 15, joint and several liability with no contribution, and the prima facie effect of any judgment under 15 U.S.C. § 16.

⭐ The asymmetry to understand. Leniency eliminates criminal exposure but not civil damages, though a successful applicant that cooperates with plaintiffs can limit civil liability to single, rather than treble, damages for its own sales. Follow-on class exposure is analyzed in class actions and mass claims and the class action and mass claim toolkit.

Tool 12 — Scope Negotiation Agenda for a CID or Second Request

Bring to the first call with agency staff: ☐ Proposed custodian list with role justification, and the custodians you propose to exclude with reasons. ☐ Proposed date range, tied to the business rationale rather than the specification's outer bound. ☐ Search-term proposal with sampling results: hit counts, false-positive rate, and estimated review hours. ☐ Data map showing which systems hold responsive structured data and in what format. ☐ Proposal for rolling productions with agreed priorities. ☐ ESI protocol: formats, metadata fields, de-duplication, family handling, and privilege log format. ☐ Burden declaration quantifying cost and time. ☐ Timing proposal, including any requested extension of the return date. ☐ For merger matters, the certification of substantial compliance and its consequences for the waiting period under 15 U.S.C. § 18a and 16 C.F.R. Part 803.

Tool 13 — Merger Clearance Timeline and Working File

Stage Owner Target date Notes
Preliminary overlap analysis (pre-LOI) Antitrust counsel Market definition, shares, theories
Deal-document discipline memo issued Counsel Governs board decks, banker memos
Reportability determination Counsel 15 U.S.C. § 18a; 16 C.F.R. Part 801, Part 802
HSR filing and fee Counsel Both agencies
Waiting period expiration 30 days; 15 for cash tender offers
Agency clearance or Second Request
Second Request compliance plan Suspends the clock
Substantial compliance certification Officer Personal exposure for inaccuracy
Remedy negotiation, if any Divestiture buyer approval
Gun-jumping controls in force Business leads Throughout No joint pricing or customer decisions pre-closing

Transaction mechanics beyond antitrust are in buying and selling a business and the business sale and acquisition toolkit.

Tool 14 — Robinson-Patman Defense File

For any seller of goods to competing buyers, keep a contemporaneous file supporting each price difference under 15 U.S.C. § 13.

☐ Cost justification: the cost study showing savings in manufacture, sale, or delivery attributable to quantity or method, prepared before or at the time of the price difference. ☐ Meeting competition: the source, date, customer, and content of the competing offer, plus a note showing the price matched rather than beat it. ☐ Changing conditions: documentation of obsolescence, seasonality, deterioration, or distress. ☐ Functional availability: proof that the discount or allowance was offered to all competing customers on proportionally equal terms, in a form each could practically use. ☐ Promotional allowances: the written offer, the distribution list, and proof of receipt. ☐ Buyer-side: copies of any customer demand for "best price in the market," flagged for legal review.

Tool 15 — Annual Compliance Audit Worksheet

☐ Association memberships reviewed; agendas and minutes sampled for two years. ☐ Survey and benchmarking participations re-screened against Tool 3. ☐ Pricing policy enforcement log reviewed for any dialogue with resellers. ☐ Contract templates re-searched for hiring restrictions. ☐ Exclusive-dealing portfolio reviewed for foreclosure share and duration. ☐ Board seats re-checked against 15 U.S.C. § 19. ☐ Training completion verified for sales, procurement, HR, and executives. ☐ Incident memos reviewed; patterns identified. ☐ Third-party pricing tools re-verified for competitor-data ingestion. ☐ Findings, remediation, and sign-off recorded in a dated report.

Tool 16 — Authority Quick Card

Print this and keep it with the policy. Every item links to the underlying text.

Provision What it governs Citation
Sherman § 1 Agreements in restraint of trade; per se categories 15 U.S.C. § 1
Sherman § 2 Monopolization and attempt 15 U.S.C. § 2
Criminal enforcement DOJ authority to institute proceedings 15 U.S.C. § 4
Clayton definitions Scope and defined terms 15 U.S.C. § 12
Robinson-Patman Price discrimination in commodities 15 U.S.C. § 13
Clayton § 3 Exclusive dealing and tying in goods 15 U.S.C. § 14
Private damages Treble damages, costs, and fees 15 U.S.C. § 15
Limitations Four years, with tolling 15 U.S.C. § 15b
Prior judgments Prima facie effect; government-suit tolling 15 U.S.C. § 16
Clayton § 7 Mergers and acquisitions 15 U.S.C. § 18
Hart-Scott-Rodino Premerger notification and waiting periods 15 U.S.C. § 18a
Clayton § 8 Interlocking directorates 15 U.S.C. § 19
Private injunctions Equitable relief for threatened loss 15 U.S.C. § 26
FTC Act § 5 Unfair methods of competition 15 U.S.C. § 45
FTC Act § 13(b) Commission injunctive authority 15 U.S.C. § 53
HSR coverage rules Definitions, aggregation, valuation 16 C.F.R. Part 801
HSR exemptions Ordinary course, investment-only, foreign 16 C.F.R. Part 802
HSR procedure Filing content, fees, waiting periods 16 C.F.R. Part 803

Six leading decisions worth knowing by name: Twombly (pleading agreement), Copperweld (single entity), Leegin (resale price maintenance), Trinko (no general duty to deal), Brooke Group (predatory pricing and recoupment), and Illinois Brick (direct purchaser rule).

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