Archived — Leniency program—FAQ's
This document supplements the Leniency Program Bulletin.
This document does not provide legal advice. Readers should refer to the Competition Act ("Act") when questions of law arise and obtain legal advice if necessary. The Bureau may choose to depart from the approach set out in this document in exceptional circumstances. If a party wishes to seek a binding written opinion from the Commissioner on the applicability of the Act to proposed business conduct, it may do so under section 124.1 of the ActFootnote 1.
All discussions regarding the Leniency Program are premised on the assumption that a marker under the Immunity Program is no longer available. The Immunity Program will apply to individuals and business organizations who wish to cooperate with the Bureau if a marker has not yet been granted under the Immunity Program.
Step 1: Requesting a Marker
1. What is a marker?
A "marker" is the acknowledgement given by the Bureau to a leniency applicant that records the time of an applicant's application to the Leniency Program. It establishes an applicant's position in line in relation to other individuals or business organizations seeking to participate in the program. The marker guarantees the applicant's place in line subject to the applicant meeting all other criteria of the Leniency Program. Once a marker is recorded, the applicant has a limited period of time, usually 30 calendar days, to provide the Bureau with a detailed statement describing the illegal activity, its effects in Canada and the supporting evidence. This statement is known as a "proffer" and is described below.
2. For what offences is a marker available?
A leniency applicant may request a marker for cartel offences under the Act. Cartel offences under the Act are those offences under sections 45 to 49, including conspiracy (sections 45 and 46) and bid-rigging (section 47).
3. Can a leniency applicant request a marker for an offence of obstruction or destruction of records?
No. A marker is not available for obstruction, destruction of records or other evidence, or any other offence under the Act other than those offences described in response to question two above. Applicants who engage in obstruction after requesting leniency risk exclusion from the Leniency Program and prosecution for both obstruction and the offence for which leniency is sought.
4. Who can request a marker?
An individual or business organization can request a marker. Not-for-profit organizations and trade and professional associations may be considered as business organizations. Typically, an applicant's legal counsel makes the contact with the Bureau.
5. Can a leniency applicant tell others about its marker request or leniency application?
The Bureau requires that applicants keep leniency applications confidential. Confidentiality helps to ensure that the integrity of the Bureau's investigation is maintained, that evidence is not destroyed, and that targets of the investigation do not become prematurely aware of investigative steps.
A leniency applicant shall not disclose its application for a marker and subsequent lenient treatment, or any related information, to a third party unless consent is first obtained from the Bureau. Depending on the circumstances, the Bureau may also ask that the leniency applicant obtain the consent of the Public Prosecution Service of Canada ("PPSC"). The only exceptions to obtaining consent occur if the application is public, or if the applicant is required by law to disclose the information. An applicant who believes that disclosure is required by law must give notice to and consult with the Bureau on how to protect the interests of the investigation in light of the requirement for disclosure. The applicant must provide notice immediately to the Bureau after becoming aware of the disclosure requirement.
6. Who should a leniency applicant call to request a marker?
Markers are given by the Senior Deputy Commissioner of Competition, Criminal Matters ("SDC"). Applicants cannot rely on any alternative contact with a Bureau officer or representative in respect of its application to establish a marker.
If contacting the SDC by telephone, an applicant should indicate clearly that it is making a marker call. The applicant should ensure that all information is clearly stated and that it and the SDC are in agreement that a marker has been requested, on the time of the request and on the description of the relevant product. As soon as possible following the request, usually within a few days, the SDC will advise the applicant whether the requested marker is available to the applicant and its place in line in relation to other applicants seeking to participate in the program.
7. Do the PPSC or the Department of Justice grant markers?
No. Neither the PPSC nor the Department of Justice accept marker calls or provide markers to leniency applicants. Applicants cannot rely on contact with the PPSC or the Department of Justice to establish a marker. Markers are only granted by the SDC.
8. Why is it important to request a marker as soon as possible?
The Bureau grants a marker to reflect each applicant's place in line. The available discounts and other benefits of the Leniency Program vary depending on an applicant's place in line.
The tiered approach to discounts and other benefits based on an applicant's place in line and degree of cooperation is intended to encourage individuals and business organizations to apply and cooperate early in order to secure a leniency advantage over subsequent applicants. Individuals and business organizations are well-advised to come forward as soon as they believe they are implicated in an offence in order to ensure that they may qualify for the best available recommendation for leniency.
9. If a leniency applicant is unsure that an offence has been committed, or what products are involved, should it request a marker anyway?
Yes. Since time is of the essence, the Bureau encourages individuals and business organizations to come forward and request a marker as soon as they believe they may be implicated in an offence. If an applicant later determines that it was not involved in an offence, the applicant should notify the SDC and withdraw its marker request.
10. What kind of information is the Bureau looking for at the marker stage?
The Bureau requires sufficient information to determine a leniency applicant's place in line under the Leniency Program. It does this by comparing the conduct and product description provided by the applicant to information already in hand. This enables the Bureau to ascertain whether another applicant has requested a marker for the same conduct and product. To this end, it is imperative that the applicant, or its legal representative, when identifying the offence, provide a precise product definition, including a description of any sub-products that may be covered within the scope of the marker request. In some circumstances, the Bureau may request more detailed information regarding the offence to assist in the determination of whether the requested marker is available.
11. Can the information provided to secure a marker be hypothetical in nature?
Yes. An applicant may provide information on a hypothetical basis at the marker stage and is not required to reveal its identity in order to obtain a marker. At this stage, information is often provided by an applicant's legal representative. However, once a marker is granted, the leniency applicant will need to identify itself to facilitate the Bureau's preparations for the proffer and its investigation.
12. Can the Bureau cancel a marker?
Yes. If an applicant who has been granted a marker fails to provide a proffer within 30 calendar days, absent any agreed extension of this deadline, the Bureau may cancel the marker. The Bureau may also cancel a marker if the applicant fails to meet any of the other requirements for leniency.
The Bureau's decision to cancel a marker will be made only after serious consideration of all factors. To provide an applicant with a reasonable opportunity to remedy its failure to provide a proffer, the SDC will provide the applicant with one 14 calendar days' notice before cancelling the applicant's marker.
Step 2: The Proffer
13. What is a proffer?
After receiving a marker, an applicant must provide the Bureau with a statement known as a proffer. In a proffer, an applicant describes in detail the illegal activity, its role in the offence for which leniency is sought, and the effect of the illegal activity in Canada. The applicant must also outline all of the supporting evidence and witnesses that it can provide as part of its cooperation under the Leniency Program. Proffers are generally provided by an applicant's legal representative.
14. When should a proffer be made?
An applicant should make and complete its proffer as soon as possible after receiving its marker and typically within 30 calendar days of the initial marker contact. The Bureau will discuss timing requirements with an applicant during the marker call. Timing of a proffer can affect other steps in the Bureau's investigation, such as a search or cooperation with another jurisdiction, where timing can be critical. In certain circumstances, the Bureau may require the applicant to make its proffer early on within the 30 calendar day period.
15. What happens after a proffer has been provided?
After an assessment of an applicant's proffer, the Bureau will present the information to the PPSC in support of the Bureau's sentencing and leniency recommendation to the PPSC. The PPSC has the final independent authority to decide if it will grant leniency and enter into a plea agreement with an applicant, but will give the Bureau's recommendation due consideration. The PPSC's policy on plea agreements is articulated in the Federal Prosecution Service Deskbook. Depending on the circumstances, the Bureau may require further information in order to complete its leniency recommendation, including the provision of evidence in the form of records or interviews with the applicant's proffered witnesses.
16. What if I can't meet the 30 calendar day deadline? Will the marker be cancelled?
If an applicant believes it is incapable of completing its proffer within 30 calendar days, this must be communicated to the SDC as soon as possible, together with reasons. The SDC will then decide whether any delay in cooperation is reasonable and, where appropriate, establish a revised schedule for delivery of the proffer. A delay may be warranted in complex cases, particularly where multiple jurisdictions are involved and information is difficult to gather or where a key witness is unavailable. The Bureau will not accept delays solely because an applicant has commitments arising out of immunity or leniency applications in other jurisdictions. Applicants should alert the Bureau to any impediments to complying with the Bureau's required schedule as early in the process as possible to avoid harm to the Bureau's investigation. Delays will be negatively considered in the Bureau's assessment of the applicant's obligation to cooperate, and will result in a reduction in the Bureau's recommended leniency discount accorded the applicant or a cancellation of the applicant's leniency marker.
The Bureau's decision to cancel a marker will be made only after serious consideration of all relevant factors and notification to the applicant.
17. What kind of information should be provided at the proffer stage?
At the proffer stage, an applicant must provide a detailed description in respect of the illegal activity for which leniency is sought and outline in detail all information it has relating to that activity so that the Bureau can ascertain the applicant's liability. Accuracy is critical; the Bureau relies on the information provided to assess the leniency application, make its recommendation for leniency to the PPSC and pursue its investigation of other parties to the offence.
At the proffer stage, the Bureau will not accept a bare outline of the conduct or speculation as to an applicant's role. The Bureau requires the details of the applicant's role and sufficient information to obtain a clear appreciation of the evidence each witness can provide about the conduct. Applicants should report as completely and accurately as possible with candour and in a spirit of cooperation.
Topics to be covered in a proffer may include those set out below. This list is not intended to be exhaustive and the information required will depend on the facts surrounding the specific offence. For example, evidence of an undue lessening of competition is required only in the case of a conspiracy where the conduct pre-dates March 12, 2010 (when the current conspiracy provision came into force).
- a general description of the applicant and the other parties implicated in the conduct;
- business ownership structures, including affiliations;
- the applicant's share of, and role in, the market;
- membership in, or involvement with, trade or other associations;
- the nature and level of involvement in the offence;
- key individuals involved in the offence;
- the physical and technical characteristics of the product;
- the end use of the product;
- a general description of the industry and how it functions;
- how pricing in the industry works;
- the regulatory framework;
- the existence and nature of contracts;
- how the product is supplied;
- customer or supplier countervailing power;
Market Definition (product and geographic)
- other market participants (domestic or foreign) and their market shares;
- a description of the key customers in Canada;
- geographic location of sellers and customers;
Required only if the conduct in respect of the offence pre-dates March 12, 2010:
- product substitutes and their price levels (including transportation costs);
- barriers to entry into the market;
- costs for a customer to switch to an alternate product;
- a description of the conduct;
- the time period of the conduct;
- the geographic scope of the conduct;
- monitoring or enforcement measures utilized in carrying out the offence;
- whether the agreement was evidenced in writing;
- whether other participants continue to engage in the conduct;
- measures taken to hide conduct or identity;
- abusive or threatening behaviour;
Impact of the Conduct
- the volume of commerce in Canada involved;
- pricing and other effects;
- whether customers were aware of the conduct or have complained about it;
- a general description of witnesses that the applicant believes could testify about the conduct and the nature of their evidence;
- identification of individuals that the applicant believes could assist with the investigation;
- all records available to the applicant that provide evidence of the conduct;
- identification of any records or witnesses that are unavailable and the reasons for the unavailability;
- whether the applicant has made, or will make, an application for immunity or leniency in other jurisdictions and the identity of these jurisdictions;
- whether the applicant is a defendant in any civil action respecting the conspiracy and the status of the civil action;
- whether the applicant is party to any joint defence agreement and any terms that may affect its obligations under the Leniency Program.
18. Are both written and oral proffers accepted?
Yes. The Bureau accepts both oral and written proffers. Bureau officers take notes of the information provided in the course of an oral proffer. Applicants should take special care in an oral proffer to ensure that all information is clearly stated and that counsel for the applicant and the Bureau officers are in agreement regarding the information provided. Accuracy is critical as the Bureau relies on the information to assess the leniency application, to develop its leniency recommendation and to pursue its investigation.
The Bureau is sensitive to the concerns of leniency applicants about written proffers and other exchanges and, as a result, it has developed a "paperless process" when dealing with leniency applicants. For further information on the Bureau's "paperless process", please see Adjustments to the Immunity Program.
Step 3: Lenient Treatment Recommendation to the PPSC
19. How does the Bureau devise the amount of its recommended fine for leniency applicants?
Unless there is relevant and compelling evidence to the contrary, a proxy of 20 percent of a leniency applicant's affected volume of commerce in Canada is the relevant starting point for the Bureau's recommended fine. The 20 percent proxy includes two components:
- a proxy of 10 percent of the affected volume of commerce in Canada to account for the overcharge resulting from the cartel activity and other types of economic harm; and
- a proxy of 10 percent of the affected volume of commerce in Canada for deterrence and to ensure that the fine is sufficiently large enough so that it does not represent a mere licensing fee or cost of doing business.
The fine level, estimated using a proxy equal to 20 percent of the affected volume of commerce in Canada, may be adjusted up or down depending on the weight assigned by the Bureau to relevant aggravating or mitigating factors. Bureau officers will then assign the appropriate discount to the fine (e.g., 50 percent for the first-in leniency applicant provided that it meets the requirements of the Program, including full, frank, timely and truthful cooperation).
In those cases where 20 percent of a leniency applicant's affected volume of commerce in Canada is greater than the statutory maximum, the starting point of the Bureau's assessment of the fine level for that applicant will be the statutory maximum.
20. How is the issue of indirect sales treated under the Leniency Program?
Indirect sales into Canada occur when a cartelized product is used as an input into an intermediate or final product manufactured abroad that is subsequently sold to a purchaser in Canada. In those circumstances where the applicant or the Bureau has evidence of indirect sales into Canada, the Bureau expects or may request, as applicable, that a leniency applicant provide information in its possession in order to assess the applicant's potential liability for such sales. The Bureau will, where necessary, work with a leniency applicant to develop a feasible methodology to estimate the affected volume of commerce associated with its indirect sales into Canada. For the purpose of a fine recommendation, indirect sales into Canada will be treated in the same way as direct sales.
Where cartel members are penalized in another jurisdiction for the direct sales that led to the indirect sales into Canada, the Bureau may consider, on a case-by-case basis, whether the penalties imposed in the foreign jurisdiction are adequate to address the economic harm in Canada from the indirect sales.
21. What if I have evidence that the overcharge was less than the Bureau's proxy?
In rare circumstances, and only where the evidence is readily accessible, compelling, neither requires modelling nor causes delay, the Bureau will consider relevant and compelling evidence provided by applicants on a timely basis that demonstrates a lower overcharge. The Bureau will not accept delays in its usual time lines for the proffer owing to the applicant's determination of this overcharge.
22. When will the Bureau recommend charges for an individual? How does the Bureau determine fine levels for individuals? When will the Bureau recommend a custodial sentence?
For the first leniency applicant, the Bureau will recommend that no separate charges be laid against the applicant's current directors, officers or employees, provided that such individuals cooperate with the Bureau's investigation in a full, frank, timely and truthful fashion. Agents and former directors, officers and employees implicated in the offence will also typically qualify for leniency provided that they offer to and do, fully, cooperate with the Bureau's investigation and any subsequent prosecution. The Bureau will make a determination regarding agents and former directors, officers and employees on a case-by-case basis, for example, depending on the current employment status of such individuals (e.g., if they are currently employed by another party to the offence).
For the second and any subsequent leniency applicant, the Bureau will consider, on a case-by-case basis, whether or not to recommend that a current or former director, officer, employee or agent be charged, considering a number of factors, including: the individual's role and extent of involvement in the offence (e.g., as the cartel instigator, leader or coordinator, or if they have used coercion, or otherwise monitored or encouraged compliance with the illegal arrangement from other participants); the degree to which the individual benefited from the offence; whether the individual is a recidivist or has a criminal record; and any other relevant aggravating or mitigating factors.
The Bureau is increasingly recommending imprisonment for cartel violations so as to secure sufficient specific and general deterrence and denunciation of the cartel conduct. Factors that influence a decision to recommend imprisonment include, but are not limited to: the degree to which the individual benefited from the offence; whether the individual was an instigator, leader or coordinator of the cartel; whether the individual used coercion, or monitored or encouraged compliance with the illegal arrangement by other participants; and any further relevant aggravating factors.
The Bureau's recommendation of an appropriate level of a fine for an individual is based on many of the same factors that influence a decision to charge an individual, including: the individual's role and extent of involvement in the offence; the degree of personal benefit or gain resulting from participation in the offence; whether the individual is a recidivist or has a criminal record; and any other relevant aggravating or mitigating factors.
23. Does the PPSC always follow the Bureau's leniency recommendation?
The PPSC has independent discretion to accept or reject the Bureau's leniency recommendation. However, the Federal Prosecution Service Deskbook provides that the PPSC should consult with the Bureau and give due consideration to its recommendation. The Memorandum of Understanding between the Commissioner of Competition and the Director of Public Prosecutions sets out the relationship between the Bureau and the PPSC, as well as each organization's roles and responsibilities.
Step 4: Plea Agreement
24. What is a plea agreement?
A plea agreement between the Director of Public Prosecutions ("DPP") and a leniency applicant establishes the agreed terms and conditions under which the leniency applicant is granted leniency in sentencing. The agreement sets out the applicant's obligations to provide full, frank, timely and truthful disclosure and cooperation throughout the Bureau's investigation and any subsequent prosecutions. It states who is covered by the agreement, how information provided by the leniency recipient will be treated and under what circumstances the agreement can be revoked. The PPSC's policy on plea agreements is set out in Chapter 20 of the Federal Prosecution Service Deskbook.
25. Can an individual or a business organization be part of the Leniency Program without pleading guilty to an offence?
No. One of the requirements of the Leniency Program is that an applicant be prepared to plead guilty to a cartel offence under the Act. Accordingly, alternative case resolutions and section 34(2) prohibition orders, which do not require a guilty plea, are not available under the Leniency Program.
26. What if an individual or business organization is unable to pay the fine?
In cases where the PPSC determines that an applicant's ability to pay should be further considered, the PPSC may ask the Bureau to verify the financial situation of the business organization or individual. A business organization will be required to provide financial information about its assets, liabilities, revenues and equity. The Bureau may request that a third-party expert accountant review the business organization's financial information. In the case of an individual, he or she will be required to provide information about his or her financial situation, including all sources of income, property, bank and investment records, tax filings and other relevant records necessary to make a determination.
Step 5: Full Disclosure
27. What information is an applicant required to provide the Bureau after entering into a plea agreement?
After a leniency applicant enters into a plea agreement with the DPP, the applicant must complete the full disclosure process. The Bureau requires full, frank, timely and truthful disclosure of all non-privileged information, evidence or records in the applicant's possession, under its control or available to it, wherever located, that in any manner relate to the anti‑competitive conduct. Applicants will be expected to provide all records and other evidence to the Bureau on a timely basis and witnesses will be expected to be interviewed at the Bureau's request. Business organizations are expected to take all lawful measures to secure the cooperation of any directors, officers, employees and agents covered by the plea agreement and to facilitate their ability to appear for interviews and to provide testimony in judicial proceedings.
Topics addressed generally will be the same as those addressed at the proffer stage, but will be covered in greater detail. The Bureau will want to view and obtain copies of records and interview witnesses, at times under oath and recorded on video or audio tape. The full disclosure process can be expensive and time-consuming and the applicant must be prepared to dedicate the appropriate resources to support the Bureau's interest in conducting an expeditious and thorough investigation.
Accuracy of the information provided to the Bureau is critical. The Bureau relies on this information to pursue its investigation of other participants in the alleged offence. Because timelines in an investigation can be critical to the Bureau's success, an applicant's lack of timely cooperation can jeopardize the Bureau's investigation. A leniency applicant who provides false or misleading information to the Bureau or fails to fully cooperate in accordance with its obligations under the plea agreement may face revocation of the plea agreement. The applicant also may face a criminal charge of obstructing a Bureau inquiry or examination under section 64 of the Act or of destroying or altering records under section 65 of the Act. Providing false or misleading information can also lead to charges, including perjury or obstruction, under the Criminal Code.
28. How soon do witnesses and records need to be made available after the plea agreement is signed?
A leniency applicant is required to provide full, frank, timely and truthful cooperation to the Bureau and the PPSC, at its own expense, throughout the Bureau's investigation and any subsequent prosecution. This means that the applicant must make witnesses and records available as quickly as possible. The Bureau will often want to schedule interviews with key witnesses very soon after a plea agreement is signed. Relevant records may be used in witness interviews and, when requested by the Bureau, should be provided to the Bureau by the applicant at least two weeks before an interview. Typically, a schedule for disclosure is established by the Bureau early in the leniency process and production of information and records completed within the disclosure period, normally within a six-month timeline. Unwarranted delays or failure to provide access to witnesses owing to other commitments, including those commitments that arise from immunity or leniency applications in other jurisdictions, will be considered by the Bureau as a breach of the plea agreement.
29. What happens if a witness refuses to cooperate with the Bureau's investigation?
The Bulletin provides that, for the first leniency applicant, current directors, officers and employees will qualify for the same benefits of leniency as if they were applying under the umbrella of their employer, but only if they provide full, frank, timely and truthful cooperation. Agents and former directors, officers and employees will also typically qualify for leniency provided that they offer to fully cooperate with the Bureau's investigation and any subsequent prosecution. The Bureau will make a determination regarding agents and former directors, officers, and employees on a case-by-case basis, for example, depending on the current employment status of such individuals (e.g., if they are currently employed by another party to the offence). The cooperation required from such individuals includes, among other things, an obligation to provide full, frank, timely and truthful disclosure of all non-privileged information, evidence or records in the applicant's possession, under its control or available to it, wherever located, that in any manner relate to the anti‑competitive conduct. There must be no misrepresentation of material facts.
If a witness refuses to provide full, frank, timely and truthful cooperation with the Bureau's investigation, the Bureau may make a recommendation to the PPSC that the witness be carved out of the plea agreement and face prosecution. Typically, the Bureau will discuss the situation with the witness and provide the witness with a reasonable opportunity to cooperate with the Bureau's investigation before making such a recommendation to the PPSC.
30. Are witnesses required to travel to Canada?
Witnesses for a leniency applicant must travel to Canada or another mutually convenient location to be interviewed by the Bureau unless special circumstances justify an alternate arrangement, and the Bureau agrees. Business organizations applying for leniency are required to cover their own expenses and the expenses of any and all witnesses who are covered by the plea agreement.
31. Can the plea agreement be revoked?
Yes. As set out in the Bulletin, the failure of a leniency applicant to comply with any of the terms and conditions of the plea agreement may result in revocation of the agreement. Where the Bureau becomes aware that an applicant does not meet the terms and conditions set out in its plea agreement, the Bureau may make a recommendation to the PPSC that the applicant's leniency be revoked. Typically, the Bureau will discuss the situation with the applicant and provide an opportunity to the applicant to address any shortfalls in its conduct as quickly as possible before making a recommendation for revocation to the PPSC.
As a result of the Bureau's recommendation, or on its own initiative, the PPSC may revoke a plea agreement where the applicant does not meet all of the terms and conditions of that agreement, and take further action against the applicant as appropriate in the circumstances.
32. If a business organization's plea agreement is revoked, will its directors, officers, employees and agents who are covered by the agreement also lose their lenient treatment?
Revocation of a plea agreement will only affect the individual or business organization that is not cooperating or that otherwise fails to comply with the plea agreement. A business organization's plea agreement can be revoked while its cooperating directors, officers, employees or agents who were covered under the agreement retain their protection. Likewise, it is possible for an individual's coverage under a plea agreement to be revoked while the individual's employer remains covered.
Step 6: Court Proceedings
33. What is the Bureau's role at this stage of the leniency process?
The Bureau plays a supporting role to the PPSC at this stage of the leniency process. For further information, please consult the Memorandum of Understanding between the Commissioner of Competition and the Director of Public Prosecutions.
34. Is the guilty plea public?
Yes, along with the documents substantiating the plea. A Statement of Admissions will be entered at the court or oral representations will be made by the PPSC to the court outlining the nature of the cartel offence, the leniency applicant's role in the offence and other relevant details, including the relevant product, the duration of the cartel and the affected volume of commerce in Canada. The Statement of Admissions or the oral representations by the PPSC are used to substantiate the representations made in the joint sentencing submission to the court.
35. Can a leniency applicant place conditions on the timing of a plea?
As noted in the Bulletin, the Bureau will not recommend that the PPSC delay the filing of the information at the request of the leniency applicant unless there are compelling reasons to do so and provided that the investigation or prosecution of other parties will not be materially impacted. The PPSC has independent discretion when deciding whether or not to delay the filing of an information. Once a leniency applicant agrees to plead guilty, the Bureau is committed to pursuing the investigation of the other business organizations and individuals that are implicated.
36. To qualify for leniency an applicant is required to stop participating in the conduct in question, but doing so may alert other parties to the offence that the applicant has approached the Bureau and this may affect the Bureau's investigation. What should a leniency applicant do?
Applicants are required to stop participating in the illegal activity. At the earliest opportunity, applicants should raise with the Bureau any concerns they have about what they can or cannot do to comply with this requirement and the possible impact that non-compliance could have on the Bureau's investigation.
37. Securing the cooperation of directors, officers, employees and agents may alert other parties to the offence that the applicant has approached the Bureau and this may affect the Bureau's investigation. What should the applicant do?
Business organizations should conduct an internal investigation of the illegal activity and secure the cooperation of potential witnesses in a manner that is consistent with confidentiality obligations under the leniency program. At the earliest opportunity, and before taking specific steps, applicants should raise with the Bureau any concerns they have about confidentiality and the possible impact this could have on the Bureau's investigation.
38. What about a leniency applicant's obligations as a member of a joint defence agreement in a civil action, or early disclosure in the civil action that the leniency applicant could use to obtain credit for cooperation?
As a leniency applicant, your first obligation is to provide full, frank, timely and truthful cooperation to the investigation and prosecution of the cartel offence for which leniency is sought.
Arrangements entered into in respect of a coordinated defence to a civil action must be subordinated to the overriding commitment owed under the Leniency Program and the terms of the plea agreement. Moreover, the leniency applicant should keep the Bureau apprised on an ongoing basis of the status of any civil action in which it is involved.
The Bureau has no interest in forestalling cooperation, nor in penalising a leniency applicant. In the event that a leniency applicant wishes to cooperate with a civil litigant in exchange for "credit" in respect of any civil liability that may be owed, this interest should be communicated as early as possible to the Bureau. This will enable the Bureau to determine how the applicant might provide cooperation in the civil action without jeopardizing the Bureau's criminal investigation or the PPSC's prosecution. Failure by a leniency applicant to advise the Bureau of its activities in this regard may jeopardize the leniency applicant's status under the Leniency Program.
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