A Deeper Dive: Working with the Antitrust Division/Agency Staff

Bob Connolly,  Law Office of Robert Connolly

Over the last several months I have heard several presentations by Richard Powers, Acting Assistant Attorney General, Antitrust Division, US Department of Justice, addressing the protocol of interactions between counsel representing parties and the staff at the Antitrust Division.  While the remarks addressed working with Antitrust Division staff, I think they are generally applicable to working with any government agency staff.

The main thrust of Mr. Powers remarks was that outside counsel need to work with the staff assigned to a matter and not try to do an end-run around staff and go directly to the front office.  A secondary principle was that the Antitrust Division strictly adheres to the procedures and policies set forth in the United States Attorneys Manual and the Antitrust Division Manual.  Counsel having a matter with the Antitrust Division should be familiar with the policies and procedures applicable to the situation.  In addition, the Antitrust Division website is rich with particular polices covering criminal enforcement, merger enforcement  and many other topics/statistics.  The Antitrust Division justifiably prides itself in transparency and the website is extensive and well organized. Presanctions/argument made to the staff will be more effective if counsel is familiar with the relevant policies/precedent and can frame her argument within those parameters.

Counsel should also be aware that there is no right to meetings with Division staff or their supervisors.  In practice, staff often will meet with counsel to discuss difficult issues it they believe the meeting is a good faith attempt to discuss the facts/law. Counsel of course can ask to take up an issue/concern to a higher level (“I’d like to speak to the manger, please”) but there is a chain of command to be followed.  “pitch” meetings with the staff supervisors are also discretionary and are generally reserved for major decisions such as challenging merger, an indictment or plea agreement.  Any request for a higher-level meeting must be made through the staff.  If counsel tries to go directly over the staff’s head they will be politely, or not so politely, rebuffed and things will be getting off on the wrong foot.  If such a meeting is granted (sometimes first with the office/section chief) the staff will always be present.  Any materials submitted should be copied to the staff and be received in enough time prior to the meeting for review by the Division.   In short, even if relations between outside counsel and the staff handling the matter become contentious, any effort to go around or exclude the staff will not be helpful to your case.

If there is any Department of Justice/Antitrust Division policy or procedure covering an issue you are dealing with, be sure to be familiar with it.  This may seem obvious, but a reminder is helpful because counsel is sometimes unaware (or forgetful) of the extensive nature of the public information put forth by the government.

Most lawyers who deal with the Antitrust Division do so on a repeat basis.  Antitrust Division lawyers talk to one another about prior dealings with outside counsel–the same way outside counsel talk to each other about Antitrust Division lawyers.  A lawyer’s reputation–especially for trustworthiness and being straight forward is important to an effective and efficient process when dealing with the Antitrust Division.

The above are basically common-sense ideas but when the topic is addressed multiple times by the Antitrust Division it is a good indication that, in the Division’s view, there are issues with, at least on some occasions, how interactions between counsel and Division staff have been handled.  The reminders I’m hearing in public statements by Division leadership is 1) respect the process and work with/through the staff handling the matter and 2) Like the saying “There’s an app for that!” it’s good to remember that there is likely a policy/procedure for that—whatever your issue may be.