Alerts

Should You Take the Fifth in a Civil Antitrust Investigation?

DOJ Antitrust Division Warns CID Information Could Be Used by Criminal Counterparts

Alerts / September 22, 2020

The Department of Justice’s (DOJ) Antitrust Division recently announced its new policy to formally warn all recipients of Civil Investigative Demands (CIDs) that the information they provide in response may be used by the DOJ in other civil, criminal, administrative, or regulatory cases or proceedings. This notice to all Antitrust Division CID recipients is new, but it is consistent with existing DOJ policy on parallel proceedings and intra-Department information sharing. The blanket warning is particularly significant in the antitrust context, where anticompetitive agreements among competitors can be prosecuted either civilly or criminally under the Sherman Act, and because civil antitrust investigations may uncover conduct that could lead to a parallel criminal investigation by the Antitrust Division or civil or criminal investigations by other DOJ components. These warnings underscore the need for seasoned antitrust counsel to help companies and individuals navigate Antitrust Division investigations and advise about possible Fifth Amendment implications arising in civil investigations.

On September 10, 2020, Assistant Attorney General Makan Delrahim of the DOJ’s Antitrust Division announced that the Antitrust Division has implemented two uniform updates to its CID forms and deposition process:[i]

  1. All CIDs issued by the Antitrust Division – including CIDs for documentary material, written interrogatories, oral testimony, or any combination thereof – will now provide notice to all recipients that their documents, answers to interrogatories, and/or testimony may be used by the DOJ in other civil, criminal, administrative, or regulatory cases or proceedings; and
  2. Division attorneys taking oral testimony pursuant to a CID will ask the deponent questions on the record at the outset of every deposition to confirm that the deponent understands the ways in which the information they provide can be used by the DOJ.

All CIDs issued by the Division will now include the following notice:[ii]

The information you provide may be used by the Department of Justice in other civil, criminal, administrative, or regulatory cases or proceedings. Individuals may refuse, in accordance with the rights guaranteed to them by the Fifth Amendment to the Constitution of the United States, to produce documents and/or answer any question that may tend to incriminate them.

The concepts here are consistent with the DOJ’s recent focus on parallel proceedings.[iii] But now, under the new policy, a formal warning will be provided to all CID recipients.

All recipients of a CID should be aware that an individual may assert his or her Fifth Amendment right against self-incrimination in civil proceedings as well as in criminal proceedings if the information compelled could tend to incriminate them in criminal conduct. Notably, while corporations are legal persons and may be criminally charged, corporations do not have Fifth Amendment rights against self-incrimination.[iv] Importantly, while in a criminal matter no inference of guilt can be drawn from a defendant’s failure to testify about facts relevant to his case,[v] in civil cases, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”[vi]

An individual’s or a company’s criminal liability could be uncovered by the Antitrust Division in numerous ways, including during a civil antitrust conduct investigation or a merger review. For example, in 2015, the DOJ launched an investigation into the proposed merger between Thai Union Group PCL, owner of Chicken of the Sea, and Bumble Bee, which would have combined the second- and third-largest sellers of shelf-stable tuna in the United States. The parties agreed to drop their plans to merge, and Assistant Attorney General Bill Baer of the Department’s Antitrust Division said, “Our investigation convinced us – and the parties knew or should have known from the get go – that the market is not functioning competitively today, and further consolidation would only make things worse.”[vii]

During the course of the merger investigation, the Antitrust Division uncovered evidence of an industry-wide price fixing scheme. The DOJ charged Bumble Bee, StarKist and Chicken of the Sea as co-conspirators in a scheme to fix the prices of shelf-stable tuna from 2011 through 2013 and obtained corporate fines totaling more than $100 million. In addition, four individuals were criminally charged in the investigation, three of whom pled guilty. The fourth, Chris Lischewski, the former president and CEO of Bumble Bee, was convicted at trial of price fixing in December 2019 by a jury in the Northern District of California. At sentencing in June 2020, Lischewski received 40 months in prison and a $100,000 fine.

Key Takeaways

The tuna industry merger investigation and resulting price-fixing convictions should serve as a cautionary tale for companies facing civil investigations by the Antitrust Division and a reason why CID recipients should think critically about the ramifications for the company and individuals when the Antitrust Division provides its new standard warnings.

Here are some takeaways for CID recipients in light of the Antitrust Division’s new policy:

  • Recipients of Antitrust Division CIDs should assume that information provided in response may be used by the DOJ in other civil, criminal, administrative, or regulatory cases or proceedings.
  • Recipients of Antitrust Division CIDs should carefully review responsive documents and consider whether compelled information could tend to incriminate individuals in criminal conduct and whether invoking the Fifth Amendment should be considered.
  • Companies and individuals considering whether an individual should invoke the Fifth Amendment in a civil proceeding should quickly determine whether the individual should be separately represented by counsel with criminal antitrust experience.
  • Companies and individuals should consider the adverse inferences that can be drawn about parties to civil actions when an individual invokes the Fifth Amendment.
  • Counsel should be aware of what Antitrust Division staff are present at a civil deposition, because the presence of staff from criminal sections may indicate that a parallel criminal investigation has been initiated or is contemplated.
  • Counsel for Antitrust Division CID recipients should consider inquiring whether a criminal investigation is open or contemplated.

Authorship Credit: Ann M. O’Brien and Alyse F. Stach

[i] Justice.gov, Press Release, “Antitrust Division Announces Updates to Civil Investigating Demand Forms and Deposition Process,” Sept. 10, 2020, available at https://www.justice.gov/opa/pr/antitrust-division-announces-updates-civil-investigative-demand-forms-and-deposition-process.
[ii] Id.
[iii] See Justice.gov, 1-12.000 – Coordination of Parallel Criminal, Civil, Regulatory, and Administrative Proceedings, available at https://www.justice.gov/jm/jm-1-12000-coordination-parallel-criminal-civil-regulatory-and-administrative-proceedings (“Parallel actions are important to the Department’s efforts to hold accountable individuals who commit corporate malfeasance.”); Justice.gov., 27. Coordination of Parallel Criminal, Civil, Regulatory and Administrative Proceedings, available at https://www.justice.gov/jm/organization-and-functions-manual-27-parallel-proceedings (“Department policy is that criminal prosecutors and civil trial counsel should timely communicate, coordinate, and cooperate with one another and agency attorneys to the fullest extent appropriate to the case and permissibly by law, whenever an alleged offense or violation of federal law gives rise to the potential for criminal civil, regulatory, and/or agency administrative parallel (simultaneous or successive) proceedings.”).
[iv] See Braswell v. United States, 487 U.S. 99, 110 (1988) (Corporations also cannot assert the Fifth Amendment on behalf of an employee to resist responding, even though companies may be the recipient of the CID); Hale v. Henkel, 201 U.S. 43, 75 (1906) (“While an individual may lawfully refuse to answer incriminating questions … it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.”).
[v] Griffin v. California, 380 U.S. 609 (1965).
[vi] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“[T]he Fifth Amendment does not forbid adverse inference against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”).
[vii] Justice.gov, Press Release, “Chicken of the Sea and Bumble Bee Abandon Tuna Merger after Justice Department Expresses Serious Concerns,” Dec. 3, 2015, available at https://www.justice.gov/opa/pr/chicken-sea-and-bumble-bee-abandon-tuna-merger-after-justice-department-expresses-serious.

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