USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
Last year, the DOJ updated its Evaluation of Corporate Compliance Programs (ECCP) guid - ance to emphasise the DOJ’s expectations that corporations should actively promote internal whistle-blowing and safeguard individuals who report misconduct. The ECCP guidance sets out factors that the DOJ will consider in determining whether to bring charges and negotiating plea or other agreements. This assessment will include whether companies have adequate policies and training to encourage whistle-blowing and pre - vent retaliation. 4. Procedural Framework for Cartel Enforcement 4.1 Obtaining Evidence From Employees As a practical matter, the DOJ will generally interface with counsel to obtain documents or testimony from employees who are not sepa - rately represented and with individual counsel for employees who are separately represented. The DOJ can seek information directly from company employees through various means, including issuing subpoenas, conducting inter - views or requesting voluntary co-operation. If the DOJ chooses to issue a subpoena, it must comply with procedural requirements, such as providing notice to the recipient and allowing an opportunity to challenge the subpoena in court. 4.2 Obtaining Documentary Evidence From Subject/Target Companies As a matter of course, the DOJ seeks documen - tary information directly from the target compa - ny, generally through a grand jury subpoena. A subpoena seeking the production of documents and other evidence is one of the early steps in an investigation and sets the stage for document
searches and productions that can be large in volume, broad in scope, and can take months to complete. Grand jury subpoenas are subject to grand jury secrecy rules and require a court order for a recipient to challenge or quash the subpoena. 4.3 Obtaining Evidence From Entities Outside the Jurisdiction The most common way for the Division to seek information from foreign entities is by serving subpoenas on their US-based operations or subsidiaries, but the DOJ’s ability to obtain for - eign-located evidence is limited. The DOJ may also seek other forms of international co-oper - ation, but this process can be protracted and is rarely used in cartel investigations. 4.4 Domestic Inter-Agency Co-Operation Most criminal cartel investigations are led by the Antitrust Division. The Division co-ordinates with other DOJ departments, including the FBI, to conduct investigation. The DOJ co-ordinates with local and federal law enforcement or other agencies as appropriate, to conduct a thorough investigation. 4.5 International Inter-Agency Co- Operation The Antitrust Division has various co-operation agreements to facilitate international cartel investigations, including the Mutual Legal Assis - tance Treaties (MLATs), antitrust co-operation agreements (ACAs), and Memoranda of Under - standing (MOUs). These agreements enable the authorities to share information and co-ordinate enforcement actions. One notable benefit of international co-operation is the ability of agen - cies, including the DOJ, to co-ordinate dawn raids or the timing when their investigations become public or overt.
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