1. Navigating the Roadblocks on the Leniency Highway Multijurisdictional Implications Julian Joshua Howrey Simon Arnold & White LLP College of Europe Global Competition Law Centre Brussels, 15 March 2005

2. Multijurisdictional issues Transatlantic (international) Coordination Impact of US discovery on EC Leniency Getting (and losing!) immunity

3. Transatlantic Coordination (1) Globalisation = global cartels = global exposure Criminal / administrative / civil exposure Leniency as an enforcement tool 18 jurisdictions have a leniency policy

4. Transatlantic Coordination (2) US DOJ criminal enforcement Civil courts (federal – state) Treble damages – class actions EU European Commission (administrative procedure) Waivers Coordination of dawn raids “Pick up the phone” cooperation No secrecy for the “also rans” Discovery orders ALSO National Courts Civil & Criminal (e.g UK)

5. Transatlantic Coordination (3) Basic Common Characteristics… BUT Different Enforcement Procedures Different Dynamic of Leniency programme Different incentives

6. Impact of US discovery on EC leniency (1) US discovery Fed R Civ P Rule 26: –“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter in the pending action…” –Not confined to material that is “admissible” as evidence at trial: includes information that “appears reasonably calculated to lead to discovery of admissible evidence” Wide judicial discretion (Methionine v Vitamins)

7. Impact of US discovery on EC leniency (2) Paperless leniency Applications to DOJ tailored to minimise civil discovery US lawyers advocate “paperless leniency” in EC Widespread use of oral procedure by Commission EC-US convergence? “Proffer” v “evidence” Nasty surprises in store: “transcript” sent with SO “Admissions” discoverable in US at critical phase

8. Impact of US discovery on EC leniency (3) Shifting the Goalposts US lawyers urge reform New notice on “Access to file”: Point 12 Unsigned minutes are internal document, therefore not evidence, not disclosable and SO not discoverable Implications: –Uncertainty for applicants –Due process / rights of defence

9. Getting (and losing!) immunity (1) Similar conditions under both programmes: –Make available all evidence / report with “candor and completeness” –Obligation of full and continuing cooperation –Ending of involvement / prompt and effective action –Not a coercer ( US: leader or instigator) Procedural aspects: staying on track

10. Getting and losing immunity (2) Stolt-Nielsen v. United States (ED, Pa, 14 January 2005): –Can DoJ revoke immunity unilaterally? –Did Stolt-Nielsen breach the agreement?

11. Practical Lessons Appoint international Coordinating Counsel Implement a global strategy Be aware of the different enforcement schemes Watch out for discovery issues Establish global procedures to protect and maximize attorney-client privilege