The U.S. Department of Justice (DOJ) continues to issue more and more search warrants in an effort to investigate potential antitrust violations. These search warrants are commonly known as “dawn raids” – on-site searches of corporate offices that typically occur with no warning.
The following is a list of actions your company should consider taking to prepare for the possibility of these investigations. If you have clients who may be subjected to a “raid,” please feel free to share this information.
A Georgia business litigation lawyer with Griffin Durham Tanner & Clarkson LLC is standing by to tell you more. Please contact us online or call (404) 891-9150 (Atlanta) or (912) 867-9140 (Savannah).
What is a “Dawn Raid”?
A “dawn raid” is the execution of a DOJ search warrant that typically occurs very early in the morning without notice or warning. Agents from both the DOJ and Federal Bureau of Investigation (FBI) usually conduct the raid, seizing documents, file cabinets, and possibly even computers. In some instances, agents will download servers or electronic files and talk to employees.
Steps to Take Before the Search
Here are some recommended procedures to establish and follow should your company ever be subjected to a criminal antitrust raid.
1. Establish a Response Team.
This team should include at least one member of the following:
- Executive management
- Legal department
- IT staff
- Media response department
- Secretarial staff for photocopying and taking notes
- A staff member who can record the investigators’ actions
- A staff member who can assist with any requests from authorities
2. Hire an Attorney if You Haven’t Already.
If you don’t have legal counsel, it will be important to find an attorney who has extensive experience in these criminal investigations. It will also be important to have the contact information of two or three other attorneys should your main counsel not be immediately available.
You should also have attorneys who are based or licensed to practice in where you have international operations.
3. Provide Compliance Training to Employees.
Rapid response team employees must be aware of the possibility of a dawn raid and should receive training from outside counsel on the procedures to follow should a raid occur. Particular emphasis should be placed on ensuring no employee ever tries to destroy, falsify, or conceal documents.
4. Distribute Checklists and Resources.
Employees who receive this training should also be given a thorough checklist that will remind them what to do should your company be the subject of a dawn raid. Secretarial personnel should have a directory of everyone who needs to be immediately notified if a raid occurs.
5. Draft Internal Alert Email.
Your legal team should draft an email with complete instructions to be immediately circulated to key personnel in the event of a raid. In the email, emphasize that no documents are to be removed or destroyed.
It should also clearly explain that all employees have the right to legal representation if authorities try to question them. The email should emphasize that no one outside the company should be told that a raid has occurred.
6. Develop a Communications Strategy.
Once the media learns about the raid, there’s a very good chance they will want comments from company executives or any employee who will talk. Speak with your legal counsel to determine the best approach for handling potential inquiries.
What to Do When Authorities Arrive
Staying calm and executing your plan will be critical, not only when agents arrive, but also while the raid is underway. Please keep the following in mind.
1. Greet Them and Request a Copy of the Search Warrant.
No one with your company should be combative at any time. Greet investigators politely and ask them to provide any documents that authorize the raid, including the search warrant.
2. Contact Your Raid Response Team.
After authorities arrive on your property, whoever greets them should also immediately notify the leader of the rapid response team.
3. Check Documents Authorizing the Raid and Identification of Authorities Executing the Raid.
The warrant must be correct. For example, it must have the right date, name and location of the company, the subject matter of the investigation, and all parties conducting the raid. The warrant and other pertinent documents should be sent to outside counsel immediately. Company employees should also check the identification of all agents to the extent possible.
4. Determine Any Additional Inspection Sites.
The employee who greets the investigators should try to find out if there are other company locations or if the homes of company personnel are being investigated. Counsel should be notified immediately so other raid response teams can be deployed.
Steps to Take During the Search
1. Monitor the authorities in an Appropriate Manner.
Company personnel should never act in any way that could be construed by investigators as obstructive. However, if they are permitted to, they should follow the agents and closely observe everything they do, recording the investigators’ actions in as detailed a manner as possible.
2. Direct Any Requests from the Authorities to Your Counsel.
Personnel should refer any agent requests to attorneys, such as consent to search documents and the location of those documents.
3. Create a Record of Seized Items and Documents.
There’s a high likelihood that documents and other items will be taken from your property. Personnel should, as accurately as possible (in a non-obstructive manner), record everything that is seized.
4. Identify Confidential Documents and Submit a Privilege Claim if Applicable.
Your attorneys should tell the agents about any documents that are classified as confidential or privileged. While disclosures should not provide information about the content, they should include the purpose of the documents, as well as the preparers and recipients. If authorities insist that the documents aren’t privileged, counsel should ask that the documents be placed in sealed envelopes.
5. Don’t Destroy or Conceal Documents.
Any action on the part of company personnel to interfere with the investigation could have severe legal ramifications, including criminal penalties. This could have a significant impact on your ability to defend your company as the case progresses. No one should try to conceal, destroy, or tamper with any documents that are being seized.
6. Don’t Talk About the Raid to Any Outside Parties.
No one outside of the rapid response team should be informed about the dawn raid. Once the raid has ended, a designated member of your team may make a statement to the public if it’s appropriate to do so and if it has been thoroughly reviewed and approved by counsel.
Subject of a potential investigation? Our firm can help.
The attorneys with Griffin Durham Tanner & Clarkson LLC can provide more information on how to prepare for a potential raid, and how to take effective action should one occur. You can call (404) 891-9150 (Atlanta) or (912) 867-9140 (Savannah), or use our online contact form to get in touch.