Inside Disputes

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Inside Disputes

Inside Disputes

13 July 2015

The following sets out typical events which might occur on the first day on a dawn raid from the perspective of the Managing Director of the business being raided.

Inside a Dawn Raid: what really happens

The following sets out typical events which might occur on the first day on a dawn raid from the perspective of the Managing Director of the business being raided. 

At 9.15 am you arrive at work and notice a couple of unfamiliar vehicles parked over the road. Once you have made a cup of coffee and sat down at your desk, your PA rings and you are told there are eight officials from the CMA standing in Reception demanding access to documents stored on the premises, including computers. Two minutes later, your partner calls; four officials from the CMA have arrived at your house requesting access to your home computer and any documents.

Contrary to popular belief, 'dawn' raids take place during normal business hours. The CMA also has powers to search vehicles and domestic premises in certain circumstances.

You arrive in Reception. Officials pass you a number of documents and inform you that they have a warrant to search the premises, including all hard copy and electronic records. The officials ask for directions to certain offices and for a list of staff.

In an ideal world, at this point you would seek expert legal advice.

Carefully read the documents stating the scope of the raid and the CMA's powers, and check that the identification of the officials present matches those listed. Under a warrant, the CMA is permitted to use reasonable force and to seize documents. Increasingly, IT forensic experts will attend to image computers and other devices. You are required to tell officials where relevant documents are if asked.

At 10 am, the manager of your North-West office calls. The CMA is accessing various computers in Manchester. This is followed by a call from a competitor who says his company is being raided. He asks you what the CMA are looking for.

Raids typically take place simultaneously in different offices and at various companies involved in the investigation.  You need to be careful in any discussions with outside parties regarding the regulatory investigation.  The nature of any discussions you have with competitors, could leave you guilty of obstructing the CMA by prejudicing the investigation, punishable by up to two years imprisonment and/or an unlimited fine.

Just before lunchtime, officials ask to use your copiers and say they would like to ask you some questions. You decide to call your solicitors.

At this stage, it is too late to ask the CMA to wait for a solicitor to arrive. At the start of the day, the officials may be prepared to wait a "reasonable" time for legal advisers to arrive before commencing their search. 

Where possible, designate a copier away from staff, minimising interruption to the CMA and your business. You are required to provide an explanation of any document but you do not have to provide answers which could be self-incriminating. Responses to questions must be managed carefully. There is a risk that if you do not cooperate, the CMA may consider that you are being obstructive (potentially a criminal offence) but, if you are too cooperative, you may prejudice your ability to defend your actions or apply for leniency from penalty.

Whilst officials trawl through documents and ask you questions, you are required to do very little else.  You struggle to concentrate on your day to day work. At 5.30 pm, officials ask to sit down and go through the documents collected. They produce a list which you read through and sign to say that it is an accurate record of what they are taking away. Officials advise they are likely to take away electronic devices when they leave the following day.

This will be your final opportunity (short of any documents which are disputed) to ensure that the documents collected are within the scope of the CMA's warrant and not legally privileged. You should ask the CMA whether they can take copies of the devices rather than removing them. If not, try to agree when they will be returned.

Officials tell you they will be back tomorrow morning and want to seal electronic devices and documents into a room. No sleep tonight…

The CMA may seal off areas for up to 72 hours. It is critical that the doors remain closed and the CMA's seals remain intact. Otherwise, your company could face fines for obstruction.

We hope the above has been interesting.  These are examples of only some issues which can arise in a dawn raid by a competition regulator.  The critical point is to ensure you and your business are best protected.  We strongly advise those in this situation to seek legal advice from qualified experts at the earliest opportunity.