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The race to leniency: gain an advantage in antitrust investigations

Jeffrey Wolff
Jul 2, 2020 5:00:00 PM

Racing against the clock is something everyone in the legal profession is well acquainted with. Deadlines, court orders, and many other time-sensitive aspects of the process make moving as swiftly as possible essential to success. That need for speed is exactly why deploying a wide range of legal technology solutions so valuable: they allows legal professionals a head start in the process.

In antitrust (as referred to in the United States of America) or competition (the European term used) investigations, as time goes by, the chance of harsher implications increases.

With the introduction of the Leniency Program by both the European Commission and US Department of Justice, corporations and individuals have the opportunity to avoid criminal conviction, fines, and prison sentences if they cooperate with an investigation.

Fabricating compliance

This opportunity for leniency is offered depending on the value of the information related to the cartel activity that they hold and share.  As time passes, however, the value of this information diminishes, as investigative authorities will either find the information themselves, or other parties will have stepped forward. Leniency is handed out first come, first served, ranging from 100% for the first applicant, 50% for the second, and so on.

By their very nature, cartel constructions are often difficult to uncover and investigate. Therefore, all jurisdictions have a so-called “lenience application” in one form or shape. A leniency application exists to encourage the parties involved to provide the authorities with the information before maximum fines are imposed.

The framework for Leniency

In the In the European legal framework, article 101 of the Treaty of the Functioning of the European Union plays a central role when a cartel is operating internationally. When cases are contained within the borders of a single member state, national laws based on the Treaty of the Functioning of the European Union come into play. All of these have special articles in place to provide leniency.

As mentioned earlier, the value of the information, based on its relevance and investigative value, is key in the application for leniency, usually, in the form of a fine reduction. This is where legal technology play a critical role: combing through the immense amount of data for investigative purposes is a time consuming task, and every minute lost could mean a minute gained for other parties to file for leniency first.

Working fast with legal technology

Through the use of eDiscovery solutions and AI-based technology assisted review, big data sets can be analyzed, prioritized, and reviewed quickly. This helps to determine the nature of the information contained in a dataset, anonymizing and labelling data, where necessary. The party subject to investigation can thus provide categorized and organized information to investigative authorities at unprecedented speed.

On the other hand, manual review, still in use in most cases, brings with it the use of big teams of lawyers, which is not only costly, but also extremely time-consuming. What’s more, as with any human-performed task, it leaves room for error. To err is human, but when the stakes are as high as they are in antitrust investigations, mistakes can be fatal.

Collecting, preserving and analyzing information through an eDiscovery platform gives investigated an opportunity to be one step ahead of their counterparts. Efficiency and accuracy stand at the heart of antitrust investigations, making the application of technology essential.

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