The US Justice Department Antitrust Division is cracking down on “gamesmanship” by companies under investigation with its new “Comply with Care” task force. Unveiled in August, the task force’s purpose is to spot companies that are using tactics like auto-deleting messaging apps to avoid complying with their obligation to provide antitrust regulators with information about mergers and in some cases, falsely certifying their compliance.
McCarter partner and former DOJ antitrust attorney Robin Crauthers spoke with Corporate Counsel and said that one concrete step companies can take is ensuring that messaging apps do not automatically delete messages as soon as they know they may be under investigation. That includes employees’ personal devices if they are used for work.
Robin said, “One of the things that seems to surprise companies when we do these compliance actions is that cell phones are considered in scope, and that includes personal cell phones. People at companies who are using their personal phones for work are going to have their phones collected.” She also urged companies to make employees aware that simply copying in-house counsel on an email is not enough to make a communication privileged if it does not contain specific discussions of legal issues. Trying to assert privilege too broadly can draw suspicion from investigators, and possibly even sanctions, she said.
“The line between an email that is seeking legal advice and an email that just has legal on it can sometimes be quite blurry,” Robin said. “There needs to be an education from the outside counsel to in-house counsel on where the line will apply and where it will not.”