Planning & Conducting Investigations

Markus H. MeierAssistant Director

African Competition ForumMarch 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.

3. Interview witnesses.

4. Request documents and data.

5. Organize and assess the evidence.

6. Determine whether there is a violation of law.

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.

The Law

Elements ofProof

Facts

Is There a Violation of the Law?

Investigative Techniques forFinding the Facts

Elements of Proof for Abuse of Dominance

1. A dominant position:– Relevant market– High market share

2. Conduct to acquire or maintain the

dominant position that is unreasonable

3. No legitimate business justification

4. Anticompetitive effects

Purpose of Investigation:Find Facts to Prove or Disprove

the Theory of the Case

Elements Facts

1. Dominant Position ???

2. Conduct to Acquire or Maintain ???

3. No Legitimate Business Justification ???

4. Anticompetitive Effects ???

Step 2Identify Sources of Information

• Witnesses

• Documents & Data

• Government Sources

• Public Sources

• Related Investigations

• Others?

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

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

Sources of Documents

• Complainant• Competitors• Customers• Suppliers, Distributors & Retailers• Government Agencies• Business/Trade Organizations• Industry Experts, Analysts• Target

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.

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.

Sequence for Gathering Information

Complainant

Documents

Witness Interviews

Target

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.

Proof Checklist

ELEMENT EVIDENCE SOURCE

1. Dominant Position

2. Conduct

3. No Justification

4. Competitive Effects

Abuse of Dominance

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.

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.

Develop a Theory

Interview Witnesses

Analyze the Evidence Identify Sources

Request Documents

The InvestigativeProcess