Transcript Report on 2009-2010

Role of Former Employees as
Witnesses of Cartel Behaviour
Breakout Session 4
Moderators:
Una Johannsdottir, Swedish Competition Authority
Randy Hughes, Partner, Bennett Jones, Canada
2013 ICN Cartel Workshop
Cape 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
2
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
4
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?
5
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?
6
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”
7