Role of Former Employees as Witnesses of Cartel Behaviour

Breakout Session 4

Moderators:Una Johannsdottir, Swedish Competition AuthorityRandy Hughes, Partner, Bennett Jones, Canada

2013 ICN Cartel WorkshopCape Town, 17 October

Outline of this session

• Introduction and brief overview of the subject matter from the agency perspective and the defence perspective

• Presentation of topics for discussion

• Open-floor discussion and exchange of relevant experiences

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Involvement of Former Employees in Cartel Investigations

• Former employees involvement in case initiation

– Tip-off / complaint

– Immunity / Leniency application

• Targets of investigative measures

– Request for information

– Interviews

– Dawn raids

• Witnesses in court

3

Benefits and challenges

• Challenge for NCAs to find witnesses of cartel behaviour

• Former employees often have valuable information about the

company, the market and the infringement

• Difficulties in obtaining their cooperation

• More likely to give accurate account than current employees?

• Evidential value

– Credibility

– History / reasons for termination

– Connections /current employment

– Role of the employee in the infringement

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Topics for discussion (1): Challenges in relying on former employees as

witnesses • Credibility

• Motivation

– Reason for cooperating

• History and reasons for termination

• Connections and current employment

• Other?

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Topics for discussion (2):How are former employees covered by the

immunity / leniency programmes?

• As a part of a company’s immunity / leniency application

• Immunity from individual sanctions

• Requirement to actively cooperate

• Need for separate counsel?

• Other?

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Topics for discussion (3): Securing cooperation of former employees

• How can agencies secure cooperation of former employees?

• Safeguards

– Role of the employee in the infringement

– Risk of self-incrimination

• Whistleblowers that do not want to be identified

– Possibility of protecting the identity of former employees that act as whistleblowers

– Can information from former employees who do not want to be identified be used as evidence?

• Small markets with few actors

– Reputation and future aspects

– ”Where everybody knows your name”

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