What if potentially criminal conduct is involved?
Certain forms of cartel conduct are criminal in a number of countries, including the US, the UK and Australia. This may extend to conduct that took place outside the relevant country but had an impact within that country.
Criminal cartel conduct may expose individual employees who were involved in the conduct to the risk of fines and/or imprisonment.
An undertaking that makes an immunity application may also be able to obtain immunity from criminal prosecution for current and former employees covered by its immunity application. This is a factor to take into account when considering whether or not to apply for immunity.
If criminal conduct is potentially involved, the individual employees involved should be advised to seek independent specialist criminal legal advice, including in order to ensure that they understand the need for continuous co-operation in order to maintain any immunity protection. The undertaking may wish to recommend and pay for the employees’ independent representation.
Standards of investigation may vary if a regulator is carrying out a criminal investigation. For example, the regulator may be enabled to take original documents in a dawn raid that has a criminal aspect and will not be content with taking copies only.
