In the special edition on Investigations of our monthly newsletter Competitive Edge, we have shared our insights covering various topics relating to competition and regulatory investigations, including preparing for a dawn raid, the growing trend of authorities ‘outsourcing’ investigations to companies, data protection and employment-related issues to be considered in an investigation, as well as how the DMA, DSA and the AI Act would strengthen competition authorities’ investigative powers. 

Based on our own insights and experience, we set out below 6 key takeaways to keep in mind when faced with, or preparing for competition law – and likewise for regulatory enforcement - investigations:

1. Stay one step ahead: Prepare and stay informed on the latest investigation trends 

Across the European Union, Australia, the UK, and China, regulatory bodies are ramping up efforts to enforce general and sector-specific competition laws and protect consumer interests, particularly in the digital economy. In the EU, enhanced detection methods and whistleblower tools, along with strengthened leniency policies and new regulations, are driving intensified investigations. Key areas of focus in the EU, Australia and the UK include consumer protection, sustainability, and digital platforms and ecosystems.

2. Failing to plan is planning to fail: Know your company and set up dawn raid and investigation procedures 

To prepare for dawn raids, in-house lawyers should familiarise themselves with the company’s operations, offering practical guidelines to employees, implementing standard response procedures, arranging legal support, and clearly labelling confidential documents as 'Privileged & Confidential’. During dawn raids, in-house lawyers coordinate the company's responses, manage communications, and ensure proper IT data handling. They also continue to collaborate with and instruct external lawyers before, during and after the raid. 

3. Be prepared, not scared: Prepare and plan for a dawn raid

Competition authorities worldwide use investigations and dawn raids to enforce competition laws, posing operational and compliance challenges to businesses. Key strategies for companies include preparing a response plan, appointing a dawn raid coordinator, and conducting mock raids to ensure staff readiness and mitigate potential psychological impacts. Understanding privilege principles and coordinating with data protection and employment law experts are also crucial for effectively handling dawn raids and investigations. 

Bird & Bird has developed award-winning tools that specifically help companies and employees to be prepared in case of a competition (or regulatory) dawn raid:

• A free Dawn Raid App:  an easy-to-use tool with key “dos” and “don’ts” at your fingertips for before, during and after an investigation.
• A free Dawn Raid Game: a quirky online game that tests your organisation's preparedness for a dawn raid by competition authorities, by positioning the player as an in-house lawyer who is at work when a dawn raid occurs. 
• Dawn Raid Investigations eLearning course: divided into 7 modules that can be assigned to specific roles within your organisation based on the role they are likely to play in a dawn raid (reception, IT department, communications department, compliance officer, etc). This course specifically prepares the employees for how to react and what to do and not to do in case of a surprise investigation.  Other competition law compliance courses are available here.
• A customisable Dawn Raid Management tool:  developed in cooperation with a SaaS provider which specialises in creating user-friendly and reliable alarm systems to cope safely with crises and incidents, this tool provides a "red-button alarm system" that is easily activated in the event of a surprise investigation by competition or regulatory authorities, automates process management and ensures secure communication during a dawn raid.

4. Improve data management: Navigate information requests like a pro 

Competition authorities have increasingly involved companies in investigating merger filings as well as competition law infringements through extensive requests for information, placing a greater burden on businesses. The future of such ‘outsourced’ investigations will balance technological advancements with transparency and accountability in law enforcement. To prepare for information requests, companies should adopt data management systems and engage external counsel and specialised forensic support in advance. Proactive cooperation with regulatory authorities can streamline investigations and reduce disruptions.

5. Unleash your team's potential: Ensure continuous learning and collaboration with the IT department

Professionals navigating competition or regulatory investigations face heightened technical complexity, requiring continuous training in integrating diverse communication channels. Understanding the company’s IT systems, organisational structures, and business practices is crucial to address the evolving challenges of digital investigations effectively. Attention to data governance, legal holds, and data integrity during collection is essential. Collaboration between legal and IT departments is a critical element for success.

6. Protect your company and employees: Consider the employment and data issues carefully when under an investigation

During dawn raids or when responding to information requests from competition authorities, it is crucial for companies to consider employment-related issues to avoid legal and reputational risks, as well as damage to employee morale. Companies must ensure compliance with employment laws, protect data privacy, maintain transparent communication, and handle personnel matters sensitively. For instance, cooperating with employees and carefully weighing all options are important during dawn raids or when responding to information requests. Finally, competition / regulatory authorities increasingly may impose personal fines on directors, officers and employees having played a leading role in breaches.  

Don’t hesitate to reach out to our experienced team at Bird & Bird to help you prepare for an investigation! 

If you need further guidance in this area, please contact Pauline Kuipers, Reshmi Rampersad, Tenisha Cramer or Maria Karpathakis.

This article is part of a special edition on Investigations of our monthly newsletter Competitive Edge.

READ MORE ARTICLES ON INVESTIGATIONS HERE

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