Antitrust advisory: Top 10 dos and don’ts for when competition enforcers knock on your door

By Michelle Lally, Kaeleigh Kuzma
Search warrants have been a longstanding tool in the Competition Bureau’s arsenal, and domestic and international “dawn raids” are standard in almost all significant cartel investigations.
Don’t let a dawn raid catch you unprepared. Here are the top 10 dos and don’ts for managing a search and seizure.

Do

1. Remain calm and cooperative when the competition officers arrive.
2. Record the officers’ time of arrival and ask for identification. Escort the officers to a meeting room and assign an employee to accompany them.
3. Contact external counsel. Ask officers to delay the search until external counsel arrives. This request may be granted or denied.
4. Ask the officers to provide you with the warrant authorizing the search. Immediately provide copies of the warrant to external counsel and appropriate employees.
5. Carefully review the warrant to determine its scope and in particular the premises, documents and objects that are the subject of the warrant.
6. Communicate effectively. Immediately circulate to all employees an internal communication advising of the search and a document hold direction, and prepare a stand-by statement for external stakeholders (e.g., media, stock exchanges, customers/clients).
7. Establish a group of employees to serve as your response team to assist during the search and seizure. Assign a member of the response team to accompany each of the officers as they conduct the search. Instruct the response team to:
• Cooperate.
• Ensure that the officers limit their search to areas and material authorized by the warrant and object to the seizure of any privileged material or material outside the scope of the search warrant.
• Immediately notify counsel if there are any disputes or allegations of obstruction, or if the officers wish to:
• seize original documents;
• copy whole mailboxes or hard drives for review at a later time;
• review legally privileged information;
• seal off an area, office or filing cabinet; or
• question company employees (other than to ask administrative questions about the location of documents, passwords for computers or technology issues).
8. Establish a protocol with the officers for dealing with privileged documents and disputed documents prior to commencing the search.
   Make copies of every document seized by the officers, including electronic documents.
9. Upon completion of the search, ensure the company provides the officers with a letter claiming confidentiality over all documents seized and reserving the right to challenge the officers’ authority to have seized documents on the grounds of either legal privilege or the scope of the warrant.

Don’t

1. Obstruct the search without good reason. Charges of obstruction may result in fines and/or imprisonment.
2. Permit officers to go beyond the scope of the warrant. If there is a dispute about whether an area is specified in the warrant or whether a document is privileged, immediately escalate the matter to external counsel.
3. Volunteer any information about the business or subjects relevant to the investigation.
4. Destroy, hide or alter in any way any documents of the company.
5. Make telephone calls or engage in discussions with legal counsel in front of the officers, except where this is unavoidable.
6. Call competitors and warn them about the searches. Your competitors are potentially being searched at the same time and may be racing against your company to cooperate with the government pursuant to the Competition Bureau’s Leniency Program.
7. Discuss, comment or speculate on the search with any third party. This includes customers, suppliers, trade associations, friends and family, and the media.
8. Sign any documents that the officers produce without first checking with counsel.
9. Break any seals put in by place by the officers. This carries severe penalties.
10. Delay in considering whether a leniency application should be made.

Bottom line

A search and seizure is a fast-paced and high-stakes situation. Be prepared for the unexpected by putting in place an effective strategy for managing the process and ensuring your company’s legal rights are protected. For further information on how to develop an effective search and seizure strategy, contact Osler’s Competition/Antitrust and Foreign Investment Group.
Published with permission from Osler, Hoskin & Harcourt LLP.

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