The bombshell news last week that the U.S. Department of Justice is investigating containerboard producers over pricing suggests that a similar civil case brought last year in the Northern District of Illinois is not frivolous, according to a legal expert.
Several companies — International Paper, Packaging Corporation of America and Smurfit Westrock — disclosed in filings with the U.S. Securities and Exchange Commission that they were subpoenaed by DOJ in late September. The subpoenas stem from a grand jury investigation in the Northern District of Illinois regarding the pricing and sale of containerboard in the United States.
Cascades confirmed via email that it also had received a subpoena from the DOJ’s Antitrust Division. Georgia-Pacific declined to comment, while Pratt Industries and Greif did not respond to requests for comment.
That criminal case is separate from the civil lawsuit filed in July 2025 that alleges the aforementioned containerboard producers created a “cartel” and engaged in price collusion to boost profits at the expense of customers.
While the cases are separate, they “overlap in certain ways and can affect one another,” said Alexander Wentworth-Ping, attorney at Schlam Stone & Dolan. Wentworth-Ping is a former federal prosecutor that reviewed both cases but is not involved in either.
By law, grand jury proceedings are confidential and kept under seal. However, most of the companies in question are publicly traded, which generally requires them to disclose certain activities in their SEC filings, according to Emmanuel Hurtado, an associate at the firm Stubbs Alderton & Markiles who is not involved in the criminal or civil containerboard cases. Required disclosures include any “material” lawsuits or government proceedings that a reasonable shareholder would consider important.
“A subpoena in a routine civil case typically doesn't rise to that level, but a subpoena from the DOJ would be treated much more seriously because it signals that there is an active government investigation, which could affect the entire industry,” Hurtado said via email.
Even so, SEC rules only require companies “to provide enough factual detail for investors to understand the scope and risk of the investigation: who's involved, where the case is pending, what it's about, what's being sought, and, if a loss is reasonably foreseeable, the estimated financial impact,” he said. Therefore, public companies typically disclose if the DOJ issues charges or how an investigation ends up, but not necessarily whether the companies have turned over documents or participated in depositions.
“Companies also tend to keep these disclosures narrowly focused, avoiding any details that could reveal their legal strategy or go beyond what they are required to disclose, unless it is in their interest to do so,” Hurtado said.
What could have prompted the DOJ investigation?
Sometimes a civil complaint can spark the interest of DOJ’s Antitrust Division, “as appears to be the case here,” explained Wentworth-Ping. The containerboard companies that DOJ subpoenaed appear to align with the defendants in the civil case. Other actions that might prompt the DOJ to get involved are formal complaints or press coverage.
“Somebody within the Antitrust Division has looked at the complaint ... and they've evaluated it under a criminal theory. And they've made a determination that there's some conduct that could be per se unlawful — meaning an antitrust violation,” said Wentworth-Ping. “The grand jury process means they're looking at it. It doesn't mean there's an accusation.”
Subpoenas often are issued “later in the investigation, which suggests to me that the Antitrust Division has probably already gotten information from other third parties,” he said. While it’s impossible to know for sure due to the sealed nature of these cases, he said DOJ employees “probably already have been conducting an investigation for a while that they have at least some documents for.”
Wentworth-Ping emphasized that no charges have been filed, but that could happen down the road. Grand jury investigations also can close without any charges being filed.
Parallel case considerations
Both the DOJ’s involvement and the judge’s recent actions in the civil case suggest the conspiracy accusations against containerboard producers are not frivolous, said Wentworth-Ping.
In September, Judge Mary M. Rowland denied defendants’ motions to dismiss the civil case, saying there’s enough evidence of a potential conspiracy to warrant further exploration of the claims by proceeding with a lawsuit. “That does signal to me that it's certainly beyond the frivolous category,” said Wentworth-Ping.
Both cases are in the Chicago area, in the Northern District of Illinois, and DOJ has “a very strong presence of the Antitrust Division there,” he said. There are other regions with a large presence, such as New York City and Los Angeles, so the DOJ choosing the Chicago area suggests “that the opening of the criminal case probably took its its cue from that civil case.”
Even if DOJ ends up not filing charges, its investigation “increases the exposure” for the defendants in the civil case, said Wentworth-Ping. “And, of course, if there was ultimately any kind of finding of guilt in the criminal case, then that is often a very significant piece of evidence that the plaintiffs in the civil case could use.”
Similarly, if executives at the companies in question invoke their Fifth Amendment rights during the DOJ investigation, “it really can hamper the defendants’ abilities to defend themselves in a civil case” due to the negative implications of such action, he said. “Again, you're sort of fighting two fronts.”
Invoking the Fifth Amendment “can be persuasive to juries and in trials,” said Wentworth-Ping, adding that “legally speaking, people shouldn't be prejudiced by invoking their Fifth Amendment. But practically speaking, there does become an adverse inference.”
Frequently in parallel cases like this, a stay is issued during the discovery period in the civil case “to protect the integrity of the grand jury investigation,” said Wentworth-Ping. Often, defendants are required to produce documents but would not have to testify under oath in the civil case until the DOJ investigation concludes. If DOJ intervenes with a stay, then that would only delay, but not eliminate, the civil case, he explained.
What’s next
It will likely take at least three to five months from the dates the subpoenas were issued for the DOJ to collect all the requested documents, and potentially more than a year for the full investigation, said Wentworth-Ping.
Subpoenas for documents frequently are followed by requests for company representatives to testify under oath in front of a grand jury. Criminal charges could follow. “I'd say you're at least a year or more out from any kind of criminal charges,” if they are brought at all, said Wentworth-Ping.
Companies and individuals under investigation could try to settle with DOJ either prior to or after charges are brought against them.
In recent years, the DOJ instituted a type of leniency program for defendants who significantly cooperate with the agency in an antitrust case, if they are the first defendant in the case to do so, explained Wentworth-Ping. Under some of the program conditions, that defendant potentially could also limit their civil lawsuit exposure. In antitrust cases, the named defendants often are held jointly and severally liable for an alleged conspiracy, but that’s not necessarily the case for the first defendant to substantially cooperate with DOJ.
“So there are some incentives for some of the defendants to cooperate,” he said.
