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Cade establishes new rules for third party access to documents collected in antitrust investigations


On September 5, 2018, the Administrative Council for Economic Defense (“CADE”) issued Resolution No. 21/2018, which establishes rules for third party access to documents and information arising from leniency and settlement agreements and dawn raids used by CADE in antitrust investigations. These rules are important for companies subject to such investigations and third parties (e.g. customers, clients) who may have sustained damages due to the investigated conduct.

Individuals and companies who/which seek redress for damages resulting from an antitrust infringement will typically request full access to such documents and information. CADE, on the other hand, considers that indiscriminate access would jeopardize investigations and the leniency program. With that in mind, CADE has decided to regulate such access by limiting the documents and information that may be accessed by third parties and establishing an adequate procedural moment for such access.

Among the documents/information that CADE will keep confidential are: (i) corporate statements and their amendments; (ii) leniency and settlement agreement proposals; (iii) documents and information relating to business strategy and business secrets; (iv) documents and information protected by legal confidentiality, such as tax and banking data; (v) documents submitted in unsuccessful proposals for leniency or settlement agreements; and (vi) other documents categorized as documents of restricted access in the course of an administrative proceeding (such as sales amounts and volumes). Access by third parties to such documents will be granted only: (i) when expressly authorized by law; (ii) upon the granting of a court order to a third party; (iii) upon a waiver signed by the signatory to the leniency or settlement agreement; or (iv) due to obligations relating to international judicial cooperation. 

Documents that do not fall within the categories above, in particular contemporaneous evidence of infringement (for example, an exchange of e-mails between competitors), may be accessed by third parties, but only after CADE's final decision in an administrative proceeding.

CADE’s Attorney General's Office may intervene in legal actions that concern access to these documents and information and may request the suspension of judicial and extrajudicial measures that may compromise agreements and their investigations. In this regard, Resolution No. 21/2018 requires signatories to agreements to inform CADE of any judicial or extrajudicial measures in Brazil or abroad that relate to access to documents resulting from agreements entered into with CADE.

Furthermore, Resolution No. 21/2018 provides that the public prosecutor who is a party to the leniency agreement will have access to all documents and information presented, and may use these to file civil and criminal proceedings. 

Finally, in an effort to promote the private redress of antitrust damages in Brazil, but at the same time safeguarding incentives for settlement agreements, Resolution No. 21/2018 authorizes CADE to consider such redress as an attenuating circumstance when calculating fines imposed on the participants of the anticompetitive conduct.
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