The Federal Trade Commission’s Bureau of Competition and the Department of Justice Antitrust Division released a joint statement reiterating document preservation obligations for companies and individuals that are the subject of government investigations and litigations, emphasizing messaging platforms, such as Slack and Google Chats, that automatically delete communications. Both agencies announced updated language in their standard preservation letters, specifications for “second requests” used in pre-merger review under the Hart-Scott-Rodino Act, voluntary access letters, and grand jury subpoenas, to address these instant messaging platforms. The agencies emphasized that companies’ obligation to preserve information on such platforms is nothing new, explaining their clarification is to prevent companies from feigning ignorance if communications are not preserved after preservation obligations are triggered.
investigations
Ballast in Litigation Privilege: Commercial Court Finds No Privilege in Expert’s Investigations but No Waiver of Privilege in Solicitor’s Witness Statement
By Julia Bihary & Steven Baker on
In the recent case of Kyla Shipping Co Ltd v Freight Trading Ltd [2022] EWHC 376 (Comm) the English Commercial Court rejected a claim to litigation privilege over preliminary investigations conducted by a party appointed expert on the basis that litigation in respect of the matter being investigated was not in reasonable prospect at the relevant time. However, the court also held that there was no waiver (or a wider collateral waiver) of privilege in respect of documents relating to how the mispricing claim was discovered (including the expert’s investigations) by the claimant’s solicitor having referred to them in a witness statement.
Litigation privilege applies to confidential documents or communications where at the time the communication or document was created litigation was in reasonable prospect; and it was created for the dominant purpose of the litigation.
“New” Guidance from Acting Attorney General on Prosecutorial Discretion
By Lindsey Olson Collins on
If you thought there would be no news coming out of President Biden’s Department of Justice, since his pick for Attorney General has yet to be confirmed, you would be wrong. Just over a week after Biden’s inauguration, the Acting Attorney General, Monty Wilkinson, issued interim guidance that is likely to have a major impact on criminal prosecutions, including of corporations, going forward while the new Justice Department formulates its long-term strategy.
Pricing in an Emergency: Where Price Gouging Meets Antitrust
As state investigators across the country launch price gouging investigations, one thing is becoming clear – state price gouging investigations can look a lot like antitrust investigations. Price gouging enforcement is at an all-time high, and more and more it is being combined with antitrust and unfair trade practice investigations. This overlap can be bad news for companies facing potential price gouging claims, and it further highlights the need for compliance with both price gouging and antitrust statutes. This article explores the interaction between antitrust enforcement and price gouging enforcement, and sets forth key issue-spotting guidance for companies that are potentially impacted.