Syedur Rahman and Nicola Sharp consider two recent cartel cases

and examine why businesses must take care not to become involved in such

behaviour.

At first glance, the worlds of modelling and furniture

making would appear to have little in common.

Yet they are linked by two recent decisions from the

Competition and Markets Authority (CMA). Both decisions indicate the extent to

which anyone in business has to be careful to avoid becoming involved in

illegal cartel activity – and the costs that can be incurred if you do.

In the furniture case, the CMA issued two decisions;

formally finding three companies guilty of illegal cartel conduct and imposing

fines that totalled £2.8 million. The decision came after two of the companies,

Thomas Armstrong (Timber) and Hoffman

Thornwood, had admitted market sharing, coordinating prices, rigging bids and

exchanging commercially sensitive information. The third company, BHK (UK), had

admitted involvement in cartel activity soon after the CMA began its

investigation. It was not fined because it was the first to come forward and so

benefited from the CMA’s leniency policy.

In the second case, five model agencies and their trade

association were fined a total of more than £1.5 million. The CMA found that

the agencies and the association, the Association of Model Agents (AMA),

colluded instead of competing on prices for modelling services.

The parties regularly shared information regarding

particular customers, the prices they were likely to charge and negotiations

that had been conducted. As a result, there were instances where the agencies

had agreed on minimum prices or pricing scales.

As well as this, the AMA and the agencies regularly sent out

emails to other agencies encouraging them to turn down prices suggested by

customers because they were too low. These emails, which were known as “AMA

Alerts’’, were viewed by the CMA as an attempt to fix prices across the modelling

industry.

This activity was happening while discussions were being

carried out with a variety of customers; including well-known clothing

companies, online fashion retailers and high-profile consumer goods companies.

Argument

There is an argument that companies facing such accusations

could make about transparency in the market place. Many companies accused of

cartel behaviour have countered with the opinion that they are simply making

sure that they have got their pricing right.

They can only do this, they argue, by knowing what their

competitors charge and by making sure they are not undercutting it or charging

too much. If they undercut their competitors, they argue, they are driving

prices down in the market, which harms everyone in it. And if they look to

charge too much, their business will suffer as potential customers will do

business with their rivals, whose prices are lower.

These arguments could be made in any industry: furniture

making, modelling and every other business where customers are charged for

goods or services that could be provided by more than one company.

Enterprise Act 2002

But these arguments count for nothing when it comes to

competition law. The Enterprise Act 2002 created the offence of cartel

behaviour in UK law. Cartel behaviour includes price fixing, bid rigging,

market sharing arrangements and deliberate restrictions on production or supply

of commodities.

It is not hard to see how the cases mentioned above fall

foul of this law. The maximum penalty for the offence is five years in prison.

People have been jailed for the offence.

Directors and employees involved in such activity can be

held personally criminally liable for such an offence. This should serve as a

stiff warning to those in business to seek legal advice at the earliest

opportunity if they have any concerns that they may be breaching the Enterprise

Act.

Immunity

In the case of the furniture makers, we touched on the

leniency policy that led to BHK (UK) not being fined.

The Enterprise Act contains provision to grant criminal

immunity to individuals “for the purposes of the investigation or prosecution

of offences’’. Putting it bluntly, if you report your cartel behaviour and

offer to co-operate with the authorities, the CMA may agree not to prosecute

you.

In such circumstances, you have to proceed carefully. Taking

advice from solicitors well-versed in this law and experienced in dealing with

the relevant authorities is the only way for someone to achieve the best

possible outcome if they are embroiled in a cartel situation.

The prosecution of cartel behaviour is not something unique

to the UK. It is viewed by the authorities as a global phenomenon and can often

involve enforcement agencies from numerous countries investigating behaviour that

spans continents.

There is also the possibility that customers – for example

the clients of the model agencies mentioned earlier – may make huge civil

claims for damages against those found guilty of cartel behaviour.

There are, therefore, a number of reasons why a company

should seek legal help if it believes it has committed cartel behaviour. What

should also be emphasised, however, is the importance of preventing such

behaviour in the first place.

Companies should be introducing compliance procedures to

eliminate the potential for cartel behaviour. The risk of cartel activity can

be “designed out’’ of the way a company works, ensuring it will not face the

problems we outlined in the furniture and modelling industries.

Only by taking such a planned approach can a company be

certain that it will not be the subject of accusations that it is part of a

cartel.