The Antitrust Division follows the Department’s practice of notifying targets, under certain circumstances, in a reasonable time before seeking an indictment. See JM 9-11.153; see also JM 9-11.151 (defining “target”) and 9-11.152 (discussing requests by targets to testify in the grand jury). Following the Department’s practice, notifying targets in antitrust cases is not appropriate in routine clear cases or when notification would be inconsistent with the ends of justice, for example if the indictment is to be sealed or for the reasons enumerated in JM 9-11.153.

Targets of antitrust investigations often request pre-indictment meetings between their counsel and the Antitrust Division. A target does not have a right to pre-indictment meetings. The Division considers these requests on a case-by-case basis, assessing whether a meeting will assist the Division in efficiently evaluating a putative defendant’s evidentiary, legal, and policy arguments against prosecution. If afforded a meeting, counsel is encouraged to present all good-faith factual, legal, and policy arguments against indictment.

A meeting with staff and their direct management will generally be afforded unless, in the staff’s assessment, the target has, through counsel, refused to engage productively with staff throughout the investigation. A meeting would be unwarranted if, for example, the target and counsel have declined to engage with staff or it is otherwise apparent to the Division that further engagement will not be productive.

If a target’s counsel is afforded a pre-indictment meeting with staff and their direct management, counsel’s arguments will be considered when the Antitrust Division’s Front Office evaluates the case recommendation. The Deputy Assistant Attorney General for Criminal Enforcement and the Director of Criminal Enforcement may also give counsel an opportunity to be heard before recommending an indictment to the AAG, particularly if the case raises a significant issue with policy or legal implications. Only in very unusual circumstances is a target’s counsel granted a meeting with the AAG. A target must request a meeting with staff and their direct management before requesting a meeting with the Antitrust Division’s Front Office, and all requests by targets to meet with the Antitrust Division’s Front Office must be made through staff.

By requiring adherence to these procedures, the Antitrust Division ensures that all putative defendants are treated equitably and that their factual, legal, and policy positions are given appropriate consideration based on neutral principles.

[updated November 2022]