But the investigation was particularly instructive for antitrust compliance counsel. The French investigators issued an objection against a French law firm, accusing it of facilitating the cartel. As the announcement described: “the Investigation Services accused [the firm] of giving a training course on competition law to [clients], during which [the firm] allegedly provided advice on concealing evidence . . .” The authority’s decision indicates the law firm advised its client, for example, that:
- Competition authorities carry out computer searches using keywords, and so suspicious file names (“Agreement”) should be avoided;
- Employees should use binders instead of notebooks because competition authorities purportedly would only be able to seize sheets from binders, instead of entire notebooks; and
- Employees should regularly archive documents off of their computers and then clear their computer’s memory.
The French authority noted that this conduct “could be classified as facilitating a cartel or obstructing the detection of anticompetitive practices,” but it did not end up sanctioning the law firm for two reasons. First, the authority noted that this advice does not, on its own, demonstrate that the law firm was aware that the cartel existed. Second, at least some of the trainings where this advice was given occurred outside the applicable statute of limitations. Nevertheless, the French investigation provides an example of compliance counsel abdicating its proper role.
While the French case is exceptional, it does build on themes that the DOJ’s Antitrust Division has also recently underscored in the United States. Like the French authority, the Division has also indicated that compliance counsel’s advice to clients not to use certain language can raise concerns. As summarized in a prior Compliance and Ethics Committee article, in a recent litigation, the Division pointed to antitrust training documents that encouraged the company not to use phrases like “market shares,” “scale,” “dominance,” “leverage,” or “bundle” as evidence that the company was aware of its strong market position. Additionally, like the French authority, the Division has also indicated that in exceptional circumstances compliance counsel could themselves face charges. At the ABA Antitrust Section’s Spring Meeting, a Division lawyer indicated that there could be situations where the Division would bring obstruction of justice charges against company counsel if the counsel’s clients failed to properly retain ephemeral messages.
In sum, these developments—in France and in the United States—underscore that while there are instances where it is appropriate to advise clients on communications and document retention policies, that guidance always should follow clear exhortations to comply both with (1) the substance of the relevant competition laws and (2) any document preservation obligations that may exist.
