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5. Criminal Case Fact Memorandum

The following is a suggested organization of information in the criminal case fact memorandum that has proved useful in antitrust case fact memoranda. It is set out here for use, as appropriate, in cases recommended by the United States Attorneys.

The memorandum should briefly summarize the highlights of the case, summarize the evidence in context, and set forth the general framework of the case. This discussion should include at least the following elements:

  1. The statutory provision(s) violated;
  2. The judicial district in which the proposed indictment would be returned or information filed, and, if appropriate, the expiration date of the grand jury;
  3. The proposed corporate and individual defendants, including the company affiliation and position of individual defendants;
  4. The duration of the conspiracy;
  5. The product or service involved;
  6. The geographic area involved;
  7. The level of product distribution (e.g., manufacturers, wholesalers, retailers);
  8. A brief summary of the evidence indicating how the conspiracy was formed or carried out and the evidence as to the involvement of each defendant;
  9. The amount of commerce affected on an annual basis; and
  10. A reference to any potential defenses or other problems the USA perceives, such as the statute of limitations, interstate commerce, single/multiple conspiracy issues, etc.

If this is the first memorandum being sent by the USA to the Antitrust Division concerning the antitrust violation, i.e., there was no prior memo requesting preliminary inquiry authority or grand jury authority, the memorandum should also indicate the factors that make it appropriate for the antitrust violation to be prosecuted by the USA rather than the Antitrust Division.

In a separate section, the fact memorandum may list the persons and companies that were subjects of the investigation but are not being recommended for indictment. The evidence against each such person or company may be summarized, and the reasons why indictment is not being recommended set forth, including such factors as the extent of cooperation, relative culpability, age, state of health, personal or business hardship, etc.

If applicable, the memorandum should analyze whether it would be appropriate to bring a companion federal damage action or to seek restitution. If a damage action or restitution is recommended, the memorandum should describe in detail the damage theory and estimate the amount of damages.

[cited in USAM 7-5.410]

Updated December 7, 2018