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2013 ICN Cartel Workshop Cape Town, 17 October

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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2013 ICN Cartel Workshop Cape Town, 17 October

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  1. 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

  2. Outline of this session • Introduction and briefoverviewof the subjectmatter from the agencyperspective and the defenceperspective • Presentation oftopics for discussion • Open-floordiscussionand exchangeof relevant experiences

  3. 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

  4. 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

  5. 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?

  6. 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?

  7. 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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