DOJ’s Push for Faster Antitrust Investigations Raises Concerns Over Court Delays

A Sept. 8 memorandum from Associate Attorney General Stanley Woodward requires senior-level approval for extensions of civil investigative demands and directs antitrust attorneys to seek court enforcement when companies miss their initial deadlines, except in extraordinary circumstances, according to Bloomberg Law .

The changes are intended to prevent businesses from using procedural delays to prolong federal investigations. But former antitrust officials and attorneys interviewed by Bloomberg Law questioned whether the tougher approach would accelerate enforcement or create additional legal obstacles.

Civil investigative demands allow the government to obtain documents, testimony and other information while examining potential violations of competition law. Companies and investigators typically negotiate production schedules, particularly when requests involve extensive electronic records or complex business transactions.

Under the new directive, prosecutors would have less discretion to accommodate companies seeking additional time. Extensions would require written authorization from the attorney general, Woodward or another senior Justice Department official, Bloomberg Law reported.

The tighter requirements could push disputes that previously were resolved through negotiations into federal court, potentially adding months to investigations.

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Bill Baer, who led the Justice Department’s Antitrust Division during the Obama administration, told Bloomberg Law that negotiating reasonable extensions with cooperating companies can be more efficient than pursuing judicial enforcement.

Court proceedings over compliance deadlines could consume time that investigators would otherwise spend reviewing evidence and developing cases, according to concerns raised by former officials in the publication’s reporting.

The policy also raises practical questions about the volume of information investigators can process.

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Debbie Feinstein, a partner at Arnold & Porter and former director of the Federal Trade Commission’s Bureau of Competition, told Bloomberg Law that production schedules often reflect the scope of government requests and the time needed to assemble responsive documents.

Requiring companies to produce large quantities of material on accelerated schedules may offer limited benefits if investigators cannot review the information at a comparable pace.

The directive could also change how prosecutors formulate their initial demands. With fewer opportunities to negotiate extensions, government attorneys may face greater pressure to narrow requests or establish more realistic production schedules before issuing them.

Harry First, a professor emeritus at New York University School of Law, told Bloomberg Law that investigators have traditionally issued broad requests and subsequently negotiated their scope with companies.

A shift away from that practice could have advantages, although its effect on enforcement remains uncertain, First said.

The new requirements come as the Justice Department seeks to exert greater control over the pace of antitrust enforcement. The department did not provide a comment for Bloomberg Law’s report.

For businesses facing federal scrutiny, the immediate effect is a more restrictive process for obtaining additional time to respond to investigative demands. Prosecutors, meanwhile, may have to balance the administration’s emphasis on speed against the practical challenges of collecting and reviewing evidence.

The policy’s effectiveness will ultimately depend on whether stricter deadlines reduce delays or instead generate litigation that prolongs the investigations they are intended to accelerate.

Source: Bloomberg Law