'I am being raided': Pinsent Masons Competition Dawn Raid Tool

The officials have arrived, introduced themselves, and have asked to see a particular person or the company's most senior member of management on the premises. You should:

Remain 

• Calm, polite, and co-operative.

 

Arrange 

• For the company's most senior member of management and, if available, the most senior lawyer on-site, to meet the officials.
• Move the officials into a meeting room that does not contain any files or access to the company's IT system.
• Explain that someone will be down to meet them shortly. In the meantime, take three copies of their inspection mandate and obtain contact details for the official in charge.

 

Contact

• If you have external competition lawyers on stand-by, then call them and ask them to attend immediately.
• If you have no such existing arrangement, then please contact a Pinsent Masons Dawn Raid specialist.
• If you need immediate assistance, then please call us now.  

 

Obtain information

• Check inspection mandate and give the external lawyers details of which authority the officials represent, how many officials there are, and scan/email to the lawyers a copy of the inspection mandate.
• Ask the external lawyers by telephone to confirm the nature of the investigation: which authority is undertaking the investigation; is it civil or criminal; do the officials have a search warrant?
• Ask the external lawyers to indicate when they are likely to arrive.
• The European Commission has very limited powers to carry out dawn raids in the UK after the UK left the EU on 31 December 2020. It can only do so if the European Commission had initiated an EU investigation before that date.

The company's senior member of management and/or in-house lawyer should read the inspection mandate, and check whether or not the officials are authorised to conduct the investigation. The external lawyers can also advise on this.

The immediate next steps will then vary depending on whether an in-house lawyer is available on site.

Review the inspection mandate

• Check if the inspection mandate applies to your company, paying particular attention to whether the address and date are correct.
• Check whether each official has identification documents. If yes, take copies.
• Check the subject matter and scope of the investigation in the inspection mandate, paying particular attention to:
  • Which authority is undertaking the investigation (CMA, European Commission, a sector regulator)?
  • Is it a civil or a criminal investigation?
  • Do the officials have a court warrant allowing them to search the company's premises?
  • Do you understand from the scope of the inspection mandate which documents are "relevant", and where and with whom they are located?
• If there are any areas of uncertainty or discrepancies, then inform the company's in-house and external lawyers immediately. If you need immediate assistance, then please call us now.

 

Try to find out

• Whether officials are also conducting investigations at any of the company's other sites or at the homes of any of the company's directors or employees.
• If it is a UK raid under the Competition Act 1998, try to establish if the officials intend to use their powers to interview individuals under s26A Competition Act 1998.
• If so, advise the external lawyers immediately and consider instructing additional lawyers to separately represent the relevant individuals to avoid potential conflicts of interest.

 

If there are NO in-house laywers on-site

• Officials will normally wait for a reasonable period (usually 30-60  minutes) for external lawyers to arrive  before starting their investigation if they are satisfied that the company is cooperating.
• If the external lawyers have already been asked to attend:
  • Explain this to the officials
  • Give an estimate of their likely time of arrival
  • Ask the officials to delay starting their investigation until the external lawyers arrive
  • Confirm the company's intention to cooperate.
• If you have not already done so, ask the external lawyers to attend immediately, and follow the actions above. If you need immediate assistance, then please call us now.
• The officials may demand that:
  • certain offices are secured or occupied, or files or documents set aside; and
  • external communications are suspended (e.g. emails and telephone lines)and other IT actions such as suspending automatic document deletion or back-up processes.
  • until the investigation commences. It is advisable to agree to these requests if the officials have agreed to delay starting their investigation until external lawyers arrive.

 

If there ARE in-house lawyers on-site

• The officials are likely to decide to start their investigation immediately. You can ask them to delay until external lawyers arrive, but the officials may decline. It is advisable not to intervene further as this could risk being perceived as a failure to cooperate.
• If the investigation starts immediately, then contact the external lawyers and ask them for further guidance by telephone. If you need immediate assistance, then please call us now.
• If it is a criminal investigation, then officials are always likely to start their investigation immediately.

You need to assemble and brief an internal response team to assist during the investigation.

Circulate mobile telephone numbers for your internal response team, the external lawyers, and the lead official.

Team structure

Gather together, and base in a room away from the officials, a team comprising:

• A senior member of the IT team who can explain the company's IT system, deal with any IT problems that may arise, and assist officials in locating, examining and copying emails and computer records, and/or suspending communications, document deletion or back-up procedures;
• A senior staff member to act as coordinator and liaise with the officials;
• Enough staff to act as a "shadow" for each official.; and
• A senior member of management who can take decisions on behalf of the company.

 

Shadowing

Advise your internal team on how to shadow the officials.

The internal team should shadow the officials to:

• ensure they are not over-reaching their investigation powers;
• monitor what they are searching for or seizing; and
• take copies of any documents seized or copied by officials.

 

The internal team should know or seek advice from the company's internal or external lawyers on what documents the officials can read (i.e. documents within the scope of the investigation which are not privileged click here for more), what questions the officials can or cannot ask (click here for more); and who at the company is authorised to respond to any immediate questions or issues.

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.

Send an email to all the company's employees on-site, informing them of the officials' presence and of the company's intention to cooperate with the investigation.

Content of email

Check the content of the email first with the company's internal or external lawyers.

The email should include the following points:

• Set out any restrictions placed on the company by the officials (for example, in relation to the use of email or other communications).
• At all times employees must be professional and courteous in their dealings with the officials.
• Employees should not volunteer information or documents to the officials (without obtaining the prior consent of the company's management or lawyers in charge of handling the investigation).
• Employees must not delete, destroy, or conceal, any documentation or data whether in hard or soft copy format, that might relate to the subject matter of the investigation.
• Routine document destruction policy of the company will be suspended immediately until further notice.
• Employees should not advise any third party (including staff located at the premises of other companies), of the investigation.
• Emphasise that any breach of these requirements could be a criminal offence, and may be a serious disciplinary offence.

 

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.

The company should NOT discuss the investigation or even mention that an investigation is underway with any of its competitors or any third party, including customers, without obtaining the prior consent of the company’s most senior member of management or the internal / external lawyers in charge of handling the investigation.

Monitor websites of the company's main competitors, and the relevant competition authority for any announcements relating to the investigation.

Prepare, in case it is needed, a brief press announcement reporting the fact of the investigation. The announcement should merely confirm that an investigation is underway and that the company is cooperating with the officials. 

If the company is listed, consider whether a stock exchange announcement is required. 

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.

Ask the external lawyers to read and check the officials’ inspection mandate and confirm whether the officials are authorised to conduct the on-site investigation.

Try to persuade the officials to allow the external lawyers and internal team time to hold a brief meeting to discuss the company's duties and how the investigation will be undertaken and monitored. 

Nominate a representative from the company and the external lawyers authorised to handle disputes with the officials during the investigation.

Whilst the investigation is proceeding, the company and its external lawyers should try to ascertain the scope and nature of the investigation, and what it concerns, what knowledge the officials already appear to possess and whether there may have been a prior leniency application by a third party.

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.  

Confirm with the external lawyers whether:

• the officials have the power to search, and
• it is a civil or criminal raid. 

The powers that the competition authorities have will vary depending on these and other factors. 

In general, the officials have the right to take photocopies or soft copies of documents or files that they are entitled to read and may, in some cases, have the right to remove the originals of documents or files.

If there is a search warrant

If the officials have a search warrant:

• They will have the legal power to conduct a search of the premises;
• They can search the premises for documents and information that may be contained in files, the IT system, diaries, daybooks, briefcases and handbags and may also search any car on the premises.

 

If there is no search warrant

If the officials do not have a search warrant:

• They do not have the power to conduct a search of the premises in relation to the investigation;
• But they can require files and documents to be produced for the officials to review.

 

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.

The officials can read documents that are within the scope of the investigation as described in the inspection mandate.

The officials are not entitled to read documents that are covered by legal privilege.

UK investigation

If the investigation is being conducted by the CMA or a UK sector regulator, the officials:

• cannot read any written correspondence between the company and its internal lawyers;
• cannot read any written correspondence between the company and its external lawyers which has been created for the purpose of the company’s right of defence.

 

What to do if the documents might be privileged?

• Identify where legally privileged documents are kept and whether they are clearly marked as legally privileged.
• Circulate amongst the external lawyers and internal team a list of the names of external and in-house lawyers who may have sent or received documents that might be seen by the officials.
• Take a detailed record of all documents copied (or taken) whether or not they are privileged. Where electronic copies are taken, a detailed record should be made and an additional copy should be made for the company to retain.
• If there is any doubt regarding whether a document is legally privileged or relevant to the investigation, ask the officials to place document in an envelope or that an email is flagged as potentially privileged and for further consideration by the company’s lawyers.

 

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.  

The questions the officials are permitted to ask during a dawn raid depends on the nature of the investigation. 

You should decide which company representative will be the contact point for responding to all questions from officials where possible. Try to direct all but straightforward factual questions (e.g. relating to the location of documents / password to email accounts, etc) to that individual. Nevertheless, the officials may wish to ask questions of specific employees.

UK civil investigation

If the investigation is being conducted by the CMA or a UK sector regulator, the officials:

• can generally ask any company employee for an explanation of a document that the official is entitled to read;
• can ask where a document or file may be found;
• cannot ask any company employee for an explanation of facts relating to the scope of the investigation unless  a formal notice under s26A Competition Act 1998 is issued;
• cannot ask a question of an employee if the answer to it might lead to the company incriminating itself.

 

UK criminal investigation

If the investigation is being conducted by the CMA or a UK sector regulator, the officials:

• can generally ask any company employee for an explanation of a document that the official is entitled to read;
• can ask where a document or file may be found;
• may, depending on the type of interview, be able to require any company employee to provide an explanation of facts relating to the scope of the investigation;
• cannot ask a question of an employee if the answer to it might lead to the individual incriminating themselves; 
• but may, depending on the type of interview, be able to ask any company employee to answer a question even if to do so might lead to the company being incriminated.

 

When answering questions

The person answering questions on behalf of themselves and/or company should: 

• reply concisely, limit their reply to what they know and should not speculate;
• ensure that their response is not false or misleading (as otherwise, that might be a criminal offence and/or expose the company and the individual to the risk of fines); 
• take a note of any questions and answers; 
• seek clarification if the question is vague or complicated; and
• consult their external or internal lawyers before responding to any questions that could be self-incriminating. 

 

If possible, it is usually preferable to request that any questions from the officials about documents or facts would be responded to later in writing by the company, rather than orally during the dawn raid. 

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.  

It is important for the company and its staff to cooperate at all times with the investigation. If the officials are obstructed when they are trying to exercise their legal powers, it may be a criminal offence for individuals and also lead to the company and/or individuals being fined.

If you require further legal advice on preparing for a dawn raid, then please contact a Pinsent Masons Dawn Raid specialist. If you need immediate assistance, then please call us now.  

The following checklists have been designed to be readily available to staff in advance of a dawn raid and provide initial guidance and support in the event of a dawn raid: 

• Check list for reception
• Check list for in-house counsel

If you are being dawn raided by a competition authority and need immediate assistance, we recommend that you call us now as soon as possible and provide the following information:

• Details of the raiding authority (i.e. CMA, European Commission, or another regulator);
• The number of officials attending the raid;
• A copy of the authorities’ inspection mandate; and
• Details of the site(s) being raided.

 

We can also provide you with training and advice on how to prepare for a possible dawn raid. Please contact a Pinsent Masons Dawn Raid specialist.