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2013 ICN Cartel Workshop Cape Town, 17 October

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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.

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Role of Former Employees as Witnesses of Cartel Behaviour Breakout Session 4Moderators:Una Johannsdottir, Swedish Competition AuthorityRandy Hughes, Partner, Bennett Jones, Canada

2013 ICN Cartel Workshop

Cape Town, 17 October

outline of this session
Outline of this session
  • Introduction and briefoverviewof the subjectmatter from the agencyperspective and the defenceperspective
  • Presentation oftopics for discussion
  • Open-floordiscussionand exchangeof relevant experiences
involvement of former employees in cartel investigations
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
benefits and challenges
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
topics for discussion 1 challenges in relying on former employees as witnesses
Topics for discussion (1): Challenges in relying on former employees as witnesses
  • Credibility
  • Motivation
    • Reason for cooperating
  • History and reasons for termination
  • Connections and currentemployment
  • Other?
topics for discussion 2 how are former employees covered by the immunity leniency programmes
Topics for discussion (2):How are former employees covered by the immunity / leniency programmes?
  • As a part of a company’simmunity / leniencyapplication
  • Immunity from individualsanctions
  • Requirementtoactivelycooperate
  • Need for separatecounsel?
  • Other?
topics for discussion 3 securing cooperation of former employees
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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