Dawn Raid, Antitrust Charges, Decade of Litigation

After nearly 10 years of litigation, the Seventh Circuit Court of Appeals recently affirmed a judgment for the defendants in the consolidated nationwide class action, In Re Sulfuric Acid Antitrust Litigation, (7th Cir. 2012). It began when the Canadian and U.S. agencies in charge of antitrust law enforcement in both countries launched a raid against several large mining and chemical companies, seizing documents in Canada and interviewing potential witnesses in the United States. The DOJ conducted its criminal investigation for more than five years before closing it without bringing charges. This didn’t protect the companies from the pain and expense of defending against the follow-on multi-district antitrust class action in the United States.

A mutual legal assistance treaty between Canada and the United States allows coordination and sharing of information obtained in investigations with international implications. This kind of arrangement is not confined to the United States and Canada. Many other countries now coordinate investigations.

The author advises counseling key executives about cross-border anti-trust investigations and lining up experienced counsel in each jurisdiction. Counsel should have a plan to obtain copies of seized documents or data, and to deal with privilege issues. They must coordinate their efforts carefully, because the investigative agencies are certainly coordinating theirs. In respect to obtaining counsel, keep in mind that the interests of the company and employees involved in the investigated conduct may diverge. Separate counsel to advise on potential individual criminal liability may be necessary.