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Planning & Conducting Investigations

Planning & Conducting Investigations. Markus H. Meier Assistant Director African Competition Forum March 25, 2013. A complaint arrives on your desk. What do you do now?. Steps in Conducting an Investigation. 1. Develop a theory of the case. 2. Identify sources of information.

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Planning & Conducting Investigations

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  1. Planning & Conducting Investigations Markus H. Meier Assistant Director African Competition Forum March 25, 2013

  2. A complaint arrives on your desk. What do you do now?

  3. Steps in Conducting an Investigation 1. Develop a theory of the case. 2. Identify sources of information. 3. Interview witnesses. 4. Request documents and data. 5. Organize and assess the evidence. 6. Determine whether there is a violation of law.

  4. Step 1Develop a Theory of the Case • Review the complaint and all public information. • Identify possible legal theories. • List elements of proof and facts needed to establish each element of a legal theory. • Think about likely economic harm to competition. • Consider possible justifications & defenses. • Identify possible remedies.

  5. Is There a Violation of the Law? The Law Elements of Proof Facts Investigative Techniques for Finding the Facts

  6. Elements of Proof for Abuse of Dominance • A dominant position: • Relevant market • High market share • Conduct to acquire or maintain the dominant position that is unreasonable • No legitimate business justification • Anticompetitive effects

  7. Purpose of Investigation:Find Facts to Prove or Disprovethe Theory of the Case ElementsFacts • Dominant Position ??? • Conduct to Acquire or Maintain ??? • No Legitimate Business Justification ??? 4. Anticompetitive Effects ???

  8. Step 2Identify Sources of Information • Witnesses • Documents & Data • Government Sources • Public Sources • Related Investigations • Others?

  9. Step 3Interview Witnesses • Purpose: To learn facts needed to prove or disprove the elements of the violation under investigation. • Types of Witnesses to Interview: • Complainant • Competitors • Customers • Suppliers, Distributors & Retailers • Government Agencies • Business/Trade Organizations • Industry Experts, Analysts, and Academics • Target

  10. Step 4Request Documents & Data • Purpose: To learn facts needed to prove or disprove the elements of the violation under investigation. • Methods for Getting Documents & Data –Voluntary requests • Letters, telephone calls • Compulsory requests • Subpoenas, CIDs, Second Requests

  11. Sources of Documents • Complainant • Competitors • Customers • Suppliers, Distributors & Retailers • Government Agencies • Business/Trade Organizations • Industry Experts, Analysts • Target

  12. Types of Document to Seek • The contract or agreement at issue. • Company formation documents. • Company organizational charts. • Company financial reports. • Business, marketing, and strategic plans. • Customer, supplier, and competitor lists. • Sales, production, and market share data. • Records of meetings.

  13. Reviewing Documents • Check for completeness and compliance with request. • Review for: • Facts that help prove or disprove the theory of the case. • Background information about the industry, companies, competitors, and customers. • Things that are not clear and require follow-up questioning of a witness. • Other potential sources of relevant information. • Organize documents by date, issue, witness.

  14. Sequence for Gathering Information Complainant Documents Witness Interviews Target

  15. Step 5Organize and Assess the Evidence • Organize the investigative files: – Correspondence – Documents & document requests – Interview reports – Witness files – Memoranda, legal research & notes • Develop a chronology. • Prepare a proof checklist.

  16. Proof Checklist Abuse of Dominance

  17. Assessing the Evidence • Is there sufficient evidence to establish each element of proof? • Is the evidence likely to be admissible? • Personal knowledge • Non-hearsay or hearsay exception • How strong is the evidence? • Credibility of the witnesses • Consistency & completeness of the story • The investigative process should continue until there is enough evidence to confidently support or reject the theory of the case.

  18. Step 6Determine Whether there Is a Law Violation Does the “story” of the case satisfy the following: • It’s about people who have reasons for how they act. • It accounts for all of the “facts beyond change.” • It consists of admissible evidence, told by credible witnesses, and supported by the documents & data. • It accords with common sense. • It includes all of the elements of proof of a legally cognizable violation of the law.

  19. The Investigative Process Develop a Theory Analyze the Evidence Identify Sources Interview Witnesses Request Documents

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