The investigative body (the General Superintendence) of the Brazilian Antitrust Authority (CADE) has launched a general guide for civil search and seizure procedures relevant to the antitrust policy.
The document, named "Diligence of Civil Search and Seizure:
general information on
operationalization", is divided into four topics correspondent to the main phases of this type of operation: (i) Case Validation; (ii) Preparation; (iii) Deflagration; and (iv) Seizure Consolidation.
The Case Validation chapter brings the minimum necessary
requirements for the General Superintendence and CADE's
Prosecution Office to evaluate if there is enough indication of
wrongdoing able to support a request for the Judiciary to grant an injunction allowing the search and seizure procedures against the investigated party.
The preparation of the search and seizure procedure includes all the activities performed, from the decision making of its implementation to the order of displacement of the teams to the targets, passing through the activities of planning, precautionary action proposal and resources and teams mobilization.
The outbreak of the search and seizure procedure is the central moment of the activity, during which the officers of justice, CADE's servers and the police force comply with the terms of the warrant issued by the competent court.
The consolidation of the seizure is the final step of the procedure. It culminates with a copy of the materials seized for analysis, to be made by the instructional areas, as well as the return of the original materials to the companies.
According to the General Superintendence, the document was
prepared based on the best practices
observed in civil search and seizure procedures carried out by CADE and is non-normative. The
guide aims to register the institutional memory and to serve as a reference for federal servants.
When the antitrust investigation is not initiated by a leniency agreement or by a robust third-party claim, search and seizure procedures are the best way for CADE to obtain evidence of a possible unilateral and/or cartel practice, enhancing CADE's chances to properly prove the existence of wrongdoings.
It is important for companies to have a full understanding on
how the procedures occur and what
measures can be taken to ensure the company and its employees are prepared to legally act during the search and seizure procedures. An Antitrust compliance program is a very useful tool for clarifying the limits of the authorities' and the entities' rights as well as for training companies and individuals for such a traumatic proceeding.
The guide is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.