(This post is the first in a series discussing mistakes both sides make in competition cases: see the introduction and as always don’t forget the disclaimer.)

No, there’s no need to investigate over there… By: Marion O’Sullivan

Playing the man, not the ball is a mistake more often – but not exclusively – carried out by the private sector against the Commission. It likely happens when the case team is perceived as sufficiently obdurate that further discussions with the case team are pointless. Complaining loud and long, often in public, about the obduracy of the case team seems to be a rational next step, but will usually be a mistake.

This is probably a mistake even if the case team is actually being obdurate. Rather than attacking the team, the better (most likely to succeed) solution is to talk about the substantive disagreement, perhaps informally, to someone other than the case team, ideally a step or two further up in the hierarchy.

One case I was involved in – for confidentiality more than ten but less than twenty years ago – was a contentious antitrust affair where tempers on both sides had risen above that which was probably sensible, both in private and in public.  The Deputy Director General, on the instructions of the Commissioner, had called a meeting to try and restart discussions in a more constructive manner, an initiative that ultimately proved successful.

The dark suited lawyers on the defendant’s side of the table marched in, took one look at the Commisson’s team, and the first point they made was that they didn’t think the presence of the Director was appropriate for a meeting designed to calm the situation. The Director had been closely associated – in their minds at least – with the perhaps overly inflammatory proceedings that had gone before.

The Deputy Director General looked back at them with unusual steeliness and said that they had no more a right to determine the Commission’s representation at the meeting than we did to determine theirs. If that wasn’t good enough for them, they could leave.

The lawyers could not leave. They clearly had no mandate to walk out based on the composition of the Commission’s negotiating team.  So their gambit failed and they were immediately in a weaker position in the discussions that followed. The discussions continued, with the Director participating throughout.

There have been many examples over the years of lawyers complaining about case teams. It pretty much never works – and most commonly has the effect of hardening the Commission’s position.

Once the wagons are circled, sensible discussions aren’t very likely

Imagine you are a client, and the Commission complains about the lawyer that you have had a good professional relationship with for five years. Or that you are a partner and the Commission complains about the associate that you have been training and developing for five years and intend to propose for partnership soon. Are you likely to fire the lawyer or associate? Or are you likely to dig in your heels and be even less inclined to listen to the Commission than before?

Head on confrontation rarely works – on either side.

That said, this isn’t the only thing to bear in mind. Realising that criticising the case team is not necessarily a good idea led one company – in a case of about the same vintage as the one I mention above – to take a slightly different tack: writing to compliment the case team, but maintaining that the Commissioner was being utterly unreasonable and arbitrary. The idea that attacking the case team would be unhelpful had obviously got through; the idea that attacking the Commissioner would be even more unhelpful had not.