Using Title III Wiretaps, Recorded Conversations and Other Investigation Tools in Cartel Investigations

The Antitrust Division has emphasized that it is using a broad set of investigative tools in its cartel investigations. For example, in October, Emma Burnham, the Director of Criminal Enforcement highlighted a variety of tools, including those used to obtain recorded conversations:

So we are using all tools at our disposal—not just grand jury process and premises warrants, but methods to conduct longer-running covert investigations. That includes search warrants for electronic evidence, but it also includes things like consensually recorded communications (including those being captured by a non-leniency cooperator), undercover agents, and Title III wiretaps. We are also thinking broadly about the types of confidential sources and cooperators best positioned to notice potential crime—not just coconspirators but also whistleblowers not directly involved in the conduct, as well as victims. (emphasis added)

The Antitrust Division has a history of obtaining recorded conversations. For example, in the lysine cartel investigation in the 1990s, “the FBI directed the covert recording of conspiratorial meetings on audiotapes and videotapes” which “were important evidence in obtaining guilty verdicts at trial against three” executives. The lysine investigation was used in the popular 2009 movie, The Informant!, starring Matt Damon, which portrayed many of the video and audio recordings.

In a recent prosecution, the Antitrust Division noted the use of court-authorized Title III wiretap recordings. Two executives were charged with conspiring to rig bids and allocate territories, conspiring to commit wire fraud and committing wire fraud in contracts for forest-firefighting services.15 The indictment refers to several phone calls and reproduced text communications, which have been a common feature the past several years in antitrust prosecutions.

The speeches and cases provide insight into how the Antitrust Division uses investigative tools to build their cases. The use of court-authorized wire taps is not limited to drug and gang prosecutions but is being used in white collar cases.

(This article originally appeared in the March 2024 Cartel Enforcement Trends and Developments newsletter.)