1. What Business Conduct Can Trigger an Antitrust Investigation?
Two competitors may reach the same price without speaking to each other. An investigation looks for agreements, conduct that excludes rivals, or transactions that threaten competition. Different legal tests apply to each concern.
Recognize Competitor Agreements That Raise Cartel Concerns
Sherman Act § 1 addresses agreements that unreasonably restrain trade. Horizontal price-fixing, bid-rigging, and market allocation are generally treated as per se unlawful. California's Cartwright Act, including Business and Professions Code § 16720, also addresses prohibited combinations that restrain competition.
| Conduct | Investigative Question |
|---|---|
| Price discussions | Did rivals agree on future prices or discounts? |
| Bid coordination | Were bids or intended winners arranged? |
| Customer allocation | Did competitors divide customers or territories? |
Price discussions
- Investigative QuestionDid rivals agree on future prices or discounts?
Bid coordination
- Investigative QuestionWere bids or intended winners arranged?
Customer allocation
- Investigative QuestionDid competitors divide customers or territories?
Matching prices do not, by themselves, establish a conspiracy. Review communications alongside independent cost and pricing decisions when evaluating a possible price-fixing allegation.
Examine Exclusive Deals and Merger Restrictions
Exclusive supply terms can have commercial explanations, but market power, foreclosure, and contract duration may raise concerns. Federal Sherman Act § 2 addresses monopolization; Clayton Act § 7 concerns acquisitions that may substantially lessen competition.
- Identify contract duration, termination rights, and restricted customers.
- Evaluate competitors' practical access to suppliers or distribution.
- Check whether a proposed acquisition requires HSR notification.
HSR notification depends on annually adjusted thresholds and exemptions. From 2027, the COMPETE Act adds state-law monopolization and monopsonization rules.
2. Which Records Should Companies Preserve and Review?
A pricing message without context may mislead. Meeting notes, approvals, and contract drafts may explain what a business decided and why. When litigation is reasonably anticipated, preserve relevant records and review retention settings.
Map Communications to the Conduct under Review
Begin with the people and systems linked to the allegation. Trade-association meetings, industry chats, and bidding discussions can provide context. Contact with a competitor, without more, does not prove a cartel.
- Preserve relevant email, chat, calendars, and meeting attachments.
- Identify pricing approvals, bid files, and independent cost analyses.
- Retain contract drafts, negotiation notes, and distribution records.
Include workplace messaging tools when relevant. Document preservation instructions, suspend applicable deletion routines, and assess legal privilege before disclosure.
Match Each Government Request to Its Legal Authority
An informal inquiry is different from a subpoena or an FTC civil investigative demand. Check the issuing authority, scope, deadline, and options for narrowing an overbroad request. Production requirements vary.
| Record or Notice | Immediate Review |
|---|---|
| Subpoena or demand | Issuing authority, scope, deadline, objections |
| Employee communications | Custodians, retention systems, context |
| Company policies | Training, reporting, prior corrective steps |
Subpoena or demand
- Immediate ReviewIssuing authority, scope, deadline, objections
Employee communications
- Immediate ReviewCustodians, retention systems, context
Company policies
- Immediate ReviewTraining, reporting, prior corrective steps
Preserve records as they exist; avoid discussions with competitors about investigative responses. A documented antitrust compliance review helps organize the response without assuming a violation occurred.
3. How Do Federal and State Antitrust Proceedings Differ?
A company may receive state and federal inquiries about the same conduct. The applicable statute, issuing agency, and type of proceeding determine the response. Operating in one county does not create a separate antitrust rule.
Identify the Investigator and Potential Exposure
DOJ investigates criminal cartels and brings federal civil actions. The FTC uses civil and administrative, not criminal, enforcement tools. The California Attorney General enforces state antitrust law civilly and criminally and federal antitrust law civilly.
- DOJ: distinguish criminal grand jury process from civil inquiries.
- FTC: review the legal basis for subpoenas and investigative demands.
- State Attorney General: examine Cartwright Act issues and requests.
Private plaintiffs may seek relief where they meet statutory standing and injury requirements. Agency investigations and private lawsuits can proceed separately.
Check Court Jurisdiction and Filing Requirements
Federal cases may reach the Central District of California if jurisdiction and venue permit. Cartwright Act suits may proceed in Superior Court; overlapping federal claims can change the forum.
- Identify whether the matter is investigative, civil, or criminal.
- Check the forum, service requirements, and filing instructions.
- Preserve documents relevant to parallel agency or private actions.
No city-specific antitrust liability test applies. Civil filings may require federal CM/ECF or applicable state e-filing procedures. In either forum, antitrust litigation procedures depend on the court and claims rather than the city's name.
4. Frequently Asked Questions
Can sharing market data with competitors create antitrust risk?
Yes. Recent, company-specific information about future prices or output may raise concerns. Context and competitive effects matter; a signed price agreement is not required for every claim.
Does an internal compliance policy prevent prosecution?
No. A program may influence an agency’s assessment but does not erase a violation. Training, reporting, and consistent enforcement matter.
Can a company seek DOJ leniency after discovering a cartel?
Possibly. DOJ requires prompt reporting and qualifying cooperation, among other conditions. Availability and individual coverage depend on the policy criteria.
Can state and federal investigations happen at the same time?
Yes. Related conduct may prompt separate inquiries under different statutes. Companies must track each request and its procedural requirements.
5. Discuss Antitrust Investigation Records with SJKP Attorneys
A demand may cover years of communications or a narrow group of transactions. Before responding, identify the relevant people, records, legal authority, and production deadline.
SJKP’s attorneys can review competitor communications, commercial contracts, investigative demands, and potential federal or state exposure. Contact the firm to discuss the specific records and questions facing your business.
20 Oct, 2026
