Dawn Raids- Are You Prepared?

Dawn Raids can be stressful…… In Korea, as in other countries, competition or anti-trust authorities are very active.  In fact, Korea’ s competition authority- the Korean Fair Trade Commission ( “KFTC”) has become more aggressive during the last few years than it used to be.  In order for companies to manage the legal risk of an anti-trust investigation, such as in Korea, the managers of companies that are potential targets should know how to handle themselves during a “Dawn Raid”.  A Dawn Raid is when competition authorities show up at the office or offices of a targeted company and seek to look at or take documents that are relevant to the investigation.  Even of course computers, etc.  Office managers or factory managers need to be prepared to handle Dawn Raids as so should in-house counsel.

What should you or your employees do in case of a “Dawn Raid”?  Here are a few tips in case you are the subject of a Dawn Raid in Korea by the KFTC:

On the arrival of officials from the KFTC

1.   What you should do

  • Ask the officials whom they wish to see and what purpose the visit is
  • Ask the officials how many there are ( or will be) in their group
  • Take the officials to a meeting room and ask them to wait.  Do not leave them near documents.
  • Tell the officials that you will inform someone who is able to deal with their enquiries
  • Immediately contact the law department, your external lawyers and Upper Management

2.   You should then:

  • Ask the officials to wait for the arrival of a lawyer- however you should note that the KFTC   officials are entitles to directly start the enquiry
  • Ask the officials to identify themselves
  • Ask the officials for their mandate for conducting their investigation  and make a copy of it
  • Fax a copy or email one copy to your lawyers or to Upper Management

3.  Don’t

  • Destroy or conceal any documents
  • Restrain the officials physically from entering the offices
  • Leave the officials alone except in a meeting room which is void of any documents
  • Enter into a conversation with the officials beyond pleasantries

During the investigation

1.  Don’t

  • Be hostile or obstruct the investigation
  • Be too compliant. Remember that the investigators’ powers are limited
  • Volunteer documents or information that has not been requested
  • Leave investigators unsupervised

2.  Do

  • Ensure that each investigator is accompanies at all times
  • Ensure that you keep a copy of all paper or electronic documents copies or seized by the investigator (s)
  • Keep full notes of everything that happens – where did the investigators go, who did they talk to , what questions they asked and what the answers were, etc.
  • Report to the lawyers and /or Upper Management after the interview with the investigators

Though Dawn Raids maybe very stressful, it is important to be courteous as well as cautious.   Remember, this maybe the first step in an anti-trust investigation, but it is a key step and should be handled in a very professional manner.

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