Global Cartel Practice: Accused in Canadian Price-Fixing Investigation Have a Right to Information Obtained Under the Competition Bureau’s Immunity and Leniency Program

King & Spalding

On February 4, 2015, the Ontario Superior Court of Justice ruled in R. v. Nestle Canada Inc., that accused parties have a right to information proffered to the Canadian Competition Bureau during the course of a price-fixing investigation in the chocolate confectionary industry. The decision resolved the Crown’s application regarding whether the information was protected from disclosure by the “settlement privilege.” Although there are distinctions between the scope of relevant privileges and protection under U.S., Canadian, and other countries with leniency regimes, the Ontario court’s decision is a concrete example that cooperation by leniency applicants and other entities in international cartel investigations is not subject to absolute confidentiality.

Background -

The Nestle Canada Inc. decision concerns information provided to the Canadian Competition Bureau (“the Bureau”) by Cadbury and Hershey, which cooperated with the Bureau regarding price-fixing allegations in the chocolate confectionary industry. Cadbury first contacted the Bureau in July 2007, and through a series of proffer meetings, Cadbury shared information relating to its internal investigation, including communications that had occurred between Cadbury representatives and parties later accused of price-fixing. Cadbury proceeded under the Bureau’s Immunity Program. Hershey subsequently cooperated as a “second in” company and pleaded guilty to price-fixing.

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