Lenz & Staehelin > Zurich, Switzerland > Firm Profile

Lenz & Staehelin > Firm Profile

Firm Overview:

With over 200 lawyers and offices in three major economic centres, Lenz & Staehelin is one of the largest law firms in Switzerland. Known for its high professional standards, the firm provides its domestic and international clients with a full range of services in the main areas of law. It is ranked amongst the leading practitioners in business law.

Main Areas of Practice:

Asset Management

Due to Lenz & Staehelin’s pioneering role in this area and our strong commitment to both regulatory and self-regulatory organizations, our team is a recognized market leader. Our long-standing expertise allows us to deliver highly specialized advice on all aspects of institutional asset management, investment services and products.

Arbitration

Lenz & Staehelin has enjoyed a leading position in international arbitration for a number of decades. Its attorneys have been involved in several hundred international arbitrations, either as counsel for a party or sitting as arbitrators. The firm has been handling disputes under the rules of all major institutions (including ICC, Swiss Chambers of Commerce, LCIA, AAA, VIAC, CAS, WIPO, ICSID) as well as ad hoc arbitration.

Banking and Finance

Advising on regulatory issues, capital market transactions, investment products and services are part of Lenz & Staehelin’s core areas of expertise. Its clients are major Swiss and international banking/financial institutions. They benefit from the firm’s experience in matters of banking/securities dealers licences, asset securitisation, securities offerings, project and structured finance, investment funds, private equity, derivatives and other financial products.

Capital Markets

Lenz & Staehelin counts a number of accredited experts for the listing of securities on the SIX Swiss Exchange. Our team delivers advisory and support services for all types of capital markets offerings, including IPOs and rights offerings, bonds, convertible bonds, covered bonds, hybrid bonds and other securities transactions.

 Competition

The firm advises in all areas of competition and antitrust law, such as merger control notifications, abuse of dominance, restrictive practices, cartel investigations, dawn raids, leniency procedures and public procurement. It regularly acts in co-ordination with leading foreign law firms in complex multi-jurisdictional merger flings. Its practice also includes proceedings before the Swiss Competition Commission and competition litigation before the Swiss cantonal and federal courts.

Corporate and M&A

The firm has a leading position in domestic and cross-border private and public M&A transactions. As such it has been involved in many of Switzerland’s most important corporate deals. The firm advises, amongst others, on corporate takeovers, mergers, joint ventures, takeovers of listed companies, private equity and venture capital. Its services in corporate law include incorporation and administration of companies, corporate governance and compliance.

Employment, Pensions and Immigration

The firm advises both employers and senior employees. It draws on a long experience in all areas of private employment and public labour law, including employment agreements, bonus and stock option schemes, non-compete covenants, social security benefits, labour litigation and arbitration. It assists foreign nationals in obtaining Swiss work permits, a service underpinned by the firm’s tradition of good contacts with cantonal and federal immigration authorities.

Insolvency and Restructuring

The firm offers a leading full-service insolvency practice encompassing the complete range of issues typically encountered in complex insolvencies. It advises and represents creditors (some of which are banks or other financial institutions), liquidators, receivers in insolvency proceedings. It also provides advice to companies in need of financial restructuring.

Intellectual Property

The firm provides first-class services in all sectors of intellectual property, such as copyright law, designs and models law, licensing, geographical indications, Swiss and European patent law, trademark law, and related fields such as unfair competition. It has extensive experience in advising clients (e.g. in IP due diligence in mergers and acquisitions process) and in representing them in intellectual property-related litigation either before cantonal and federal courts or before arbitral tribunals.

Investigations

Lenz & Staehelin assists clients in efficiently conducting complex internal investigations, both on their own initiative or in response to inquiries or investigations by governmental authorities, whistle-blower claims or shareholder demands. The firm’s practice covers a broad range of industries and issues (including antitrust, anticorruption, violation of banking or capital market rules, disclosure and accounting issues, tax and civil or criminal misconduct).

Litigation

The firm’s litigators advise and represent clients in administrative, civil and criminal proceedings. They deal with antitrust and unfair competition litigation, banking/finance/commercial litigation, bankruptcy and debt collection, coordination of international litigation, employment disputes, enforcement of foreign judgments and awards, international legal assistance, intellectual property litigation, money laundering and white-collar crimes, real estate and construction disputes, trust and estate-related litigation.

Private Clients

This team of specialists provides corporate and individual clients with comprehensive expert advice on wealth planning and succession issues. The team includes lawyers with particular expertise in international estate planning and structuring and who are qualified under both civil law and common law systems. They offer creative advice on trust and company administration services in Switzerland and Guernsey.

Real Estate

The firm provides advice and support to commercial users, institutional investors, real estate investment funds, financial institutions, rating agencies and private clients. The practice group’s capabilities encompass all legal aspects of real estate financing, sale and lease back transactions, commercial lease and real estate development projects.

Tax

The firm’s tax department is one of the largest of any Swiss law firm with more than 25 tax attorneys most of whom are also certified tax experts. In addition to all aspects of tax planning, its services also include the representation of clients in front of tax authorities or in tax litigation, arbitration and mutual agreement procedures. It has particular expertise in tax issues related to financial products, real estate, private equity, M&A/restructurings/buyouts/relocations, in tax planning for private clients, executives and transferees at international companies, and in VAT matters.

Technology and Outsourcing

The firm offers a wide range of transactional and regulatory services in technology, media and telecom matters, with a leading position also in outsourcing (both infrastructure and BPO transactions). Services include advice on complex IT projects, hosting and ASP, data protection, eCommerce, convergence issues, public procurement, FinTech, ICT contracts and sofware licensing, strategic business alliances and joint ventures. It regularly advises important media companies and TV, radio and cinema operators on licensing, advertising and sponsorship issues.

Lawyer Profiles

Photo	Name	Position	Profile
	Dr Martin Aebi	Counsel	View Profile
	Mr Stephan Brandner	Counsel	View Profile
	Dr Stefan Breitenstein	Senior Counsel	View Profile
	Dr Thierry Calame	Managing Partner, Co-Head of Intellectual Property	View Profile
	Mr Hans-Jakob Diem	Partner, Head of Corporate and M&A, Co-Head of Capital Markets	View Profile
	Mrs Simone Ehrsam	Partner	View Profile
	Mr Stephan Erni	Partner	View Profile
	Dr Roland Fischer	Counsel	View Profile
	Mr Harold Frey	Partner, Head of Litigation and Arbitration	View Profile
	Mr Tino Gaberthüel	Partner	View Profile
	Mr Alexander Greter	Partner	View Profile
	Dr Robert Heberlein	Senior Counsel	View Profile
	Prof Dr Pascal Hinny	Partner, Head of Tax	View Profile
	Mrs Alexandra Hirt	Counsel	View Profile
	Dr Patrick Hünerwadel	Partner	View Profile
	Mr Beat Kühni	Partner	View Profile
	Mr Fadri Lenggenhager	Counsel	View Profile
	Mr Peter Ling	Partner	View Profile
	Mrs Tanja Luginbühl	Partner, Head of Insolvency and Restructuring	View Profile
	Dr Marcel Meinhardt	Partner, Head of Competition	View Profile
	Mr Fabiano Menghini	Partner, Co-Head of Real Estate	View Profile
	Dr Lukas Morscher	Partner, Head of Technology and Outsourcing	View Profile
	Mr Dominique Müller	Partner, Head of Investigations and Co-Head of Employment (Litigation)	View Profile
	Dr Matthias Oertle	Partner, Co-Head of Employment and Pensions	View Profile
	Dr Christoph Reinhardt	Senior Counsel	View Profile
	Mr Heini Rüdisühli	Tax Partner, Head of Private Clients	View Profile
	Dr Patrick Schleiffer	Partner, Co-Head of Capital Markets	View Profile
	Prof Dr Jurg Simon	Partner, Co-Head of Intellectual Property	View Profile
	Mrs Franziska Stadtherr-Glättli	Counsel	View Profile
	Mr Marcel Tranchet	Partner, Head of Banking and Finance	View Profile
	Dr Rudolf Tschäni	Senior Counsel	View Profile
	Dr Astrid Waser	Partner	View Profile
	Mr Matthias Wolf	Partner	View Profile

Doing Business In

Bi-lateral agreement Switzerland/Germany increases risk of dawn raids

New Cooperation Agreement between Swiss and German competition authorities

Switzerland and Germany signed the Agreement on November 1, 2022. It is expected to enter into force in September 2023 at the earliest, as the Swiss Federal Assembly still has to approve the Agreement. The ratifying German Federal Ministry of Economics and Climate Protection, on the other hand, was authorized in advance in §187 (10) of the German Act against Restraints on Competition¹ to conclude the Agreement without consent of the German Federal Council.

The Agreement aims to ensure efficient enforcement of competition law in cross-border situations. For this purpose, the Agreement will enable future cooperation between the Swiss Competition Commission and the German Federal Cartel Office (together the “Authorities”).

The Agreement is modelled after the agreement between the European Union and the Swiss Confederation concerning cooperation on the application of their competition laws², which entered into force in 2014. In terms of content, there are strong parallels between both agreements. The Agreement does, however, allow for greater cooperation with the German Federal Cartel Office.

In the future, the two Authorities will be able to take coordinated enforcement actions as set forth in Art. 8 to10 of the Agreement. They may exchange views and information on the application of their respective competition laws, including information obtained in an investigation. Under certain conditions, either authority may transmit information it already possesses to the other for use as evidence.

In addition to the service of the broadly defined sovereign acts, the Agreement also allows for the direct service of notices, requests for information and other letters that do not constitute sovereign acts in the respective other contracting state.

Furthermore, the German Federal Cartel Office is entitled to disclose information obtained under Art. 8 of the Agreement to the EU Commission. The disclosure of such information to the competition authorities of other EU states, on the other hand, requires the prior consent of the Competition Commission.

After the Agreement will have entered into force, an increase in parallel proceedings in cross-border cases in Switzerland and Germany is to be expected, e.g. through coordinated dawn raids or the exchange of confidential information and evidence.

Increased risk of coordinated dawn raids

Dawn raids are a typical start of complex antitrust proceedings. They do harbor the chain risk of problematic bycatch, which can lead to further proceedings. After a short Corona-related time-out, the competition authorities have gone back to performing dawn raids on companies in the last year both in Switzerland and the European Union (the European Commission as well as the national Competition Authorities in the European Union). The German Federal Cartel Office is particularly active among the European competition authorities. In 2022, it conducted 18 dawn raids, of which 2/3 were on its own initiative and 1/3 by way of administrative assistance³. It is precisely with this authority, the Swiss competition authority can cooperate more intensively in the future. This is expected to increase the risk of simultaneous dawn raids in both countries.

Cross-border proceedings require a uniform and coordinated procedural strategy for both countries in order to protect the interests of the concerned company and to ensure that the investigations can be carried out with the least possible internal and external impact. This starts with the preparation of corporate guidelines for a potential dawn raid. Therefore, the authors provide recommendations on what to consider for companies that want to revise their dawn raid guidelines accordingly or to draw up such guidelines for the first time.

Dawn raid Guidelines

General Remarks

Dawn raids are usually conducted without warning as a coercive measure which are, by analogy, subject to the Federal Act on Administrative Criminal Law. House searches in companies may be triggered for various reasons. Given the widespread home-office practice, the term “house” also encompasses home-offices of employees. This will increase the need for cooperation and discipline further. In ignorance of the concrete inducement and the party rights, mistakes can happen already at the beginning of the house search, which can have considerable effects on the later proceedings, the sanctioning (e.g. as aggravating circumstance) and the reputation of the companies concerned.

For many employees, a dawn raid is their first contact with law enforcement. Investigating authorities can therefore cause uncertainty and concern among employees. During on-site investigations, the seizure of evidence and any interrogations, everyone involved is required to maintain the necessary objective distance and restraint vis-à-vis the investigators. An emergency number to call in case of a dawn raid and guidelines on the most important rules of conduct are essential and can provide em-ployees with basic comfort. Specific dawn raid apps, like the one of Lenz & Staehelin help accessing this information.

As long as the company has not decided to cooperate, statements on the matter in the sense of anticipatory obedience should be avoided and discussions with the investigators should be limited to the technical details of the search, if possible.

Dawn raid stages and responsibilities

In general, a dawn raid can be divided into three stages that require the actions of different groups of personnel: (i) the arrival of the investigative agency representatives, (ii) the raid itself, and (iii) the follow-up to the raid.

Internal guidelines and the targeted organizational involvement of legally qualified employees (legal department, compliance management and external attorneys) can prevent mistakes when investigators arrive, during investigative activities and their follow-up, thus protecting employees and the company. It is crucial, that such guidelines also cover home-offices. By the same token, in case of parallel dawn raids of several enforcers, cross-border information and coordination is essential.

The following rules of organization and conduct are intended to help employees properly handle investigative activities even before consulting internal or external legal counsel They should therefore take into account all of the five phases listed below:

i) Responsibilities

Response Team

The company’s management is responsible for staffing an internal group of persons to accompany the investigation (the “Response Team”). The implementation of this task can be delegated to the competent compliance officer on account of its interdisciplinary function or to the general counsel (the “Head Response Team”). The exact organization of the Response Team is based on the circumstances on site and the fact whether home offices are raided and/or cross-border raids are conducted. At smaller or purely production units, this role can also be performed by experienced managers. The Head Response Team stays in constant contact with the head of the investigation authorities as well as with (internal/external) attorneys involved, and with premises raided abroad. He informs higher level offices of the companies (General Counsel, Chief Compliance Officer and the relevant competent corporate management) on the progress of the investigation.

Support Team

The Response Team is accompanied by a Support Team, depending on the extent of and reason for the search. The members of the Support Team accompany the investigators during the search.

External attorney

The company affected by a search has the right to call in an attorney, but not the right to delay the search until the attorney arrives. The involvement of an external attorney shall ensure that the rights of the company are respected by preventing mistakes during and after the raid. Also during the dawn raid, the exchange of information between the company and the external attorney is subject to attorney-client privilege, unlike correspondence with an in-house counsel.

ii) Arrival of the Investigators

Employees of the reception or plant security (or at the home-office) are usually the first to be confronted by the investigating authorities.

Members of the authorities may enter the premises and occupy the (home-)offices without waiting for the company concerned to consult an attorney. Generally, the authority grants the company a short delay to consult with legal counsel prior to the actual search. However, the search may routinely begin before external legal counsel has arrived. Still, no substantive questions should be answered without an attorney present. Therefore, it is important that agency personnel are properly received and that the chain of custody is set in motion when they arrive. For this reason, reception staff should be trained in how to handle such investigations and given a clear checklist to follow.

The reception/plant security checklist should include a list of the Response Team members, including their telephone numbers, information about the chain of command and a template for recording information about the Investigators. Reception / plant security should first clarify which agency is conducting the investigation and inform the Response Team. Then, reception / plant security accommodates the Investigators in separate rooms for the initial and final meeting with the Response Team and their subsequent accommodation during the investigation. A copier/scanner should be available in these rooms to prevent the seizure of original documents. If necessary, appropriate rooms for the investigation must be cleared immediately.
The Response Team should immediately move to the defined location upon information and should verify whether home-offices are also raided and/or premises abroad are also affected by a parallel raid.

iii) Raid

Initiation

The officer conducting the search (the “Head Investigator”) must identify himself at the beginning of the investigation to the owner of the premises and inform him of the reason for the search. In the case of legal entities to the person in charge of the company, i.e. the CEO or the person present holding the highest hierarchical position in the company. To this person, the Head Investigator hands a duplicate of the search warrant, the notification of the initiation of the investigation, the instructions on the right of appeal, the information sheet and the form on the bonus scheme against acknowledgement of receipt. However, it may be in the best interest of the company to have the Head Response Team receive these documents. If these documents are not clear on parallel home-office raids and/or raids abroad the Head Response Team must raise this question.

Based on this information, the Head Response Team performs the following tasks:

1. Decision whether to expand the Response Team according to the situation and taking into account the allegations;
2. Decision whether the responsibility of the Response Team can or must be transferred to other business divisions;
3. Decision whether to reach out to the foreign premises raided;
4. Appointing the members of the Support Team to accompany the Investigators in the business divisions covered by the search warrant (these may or may not be members of the Response Team). When selecting the members of the Support Team, it must be insured that no one who is or could be a defendant is involved in the subsequent organizational procedure;
5. Decision on waiving the presence of the cantonal official whose task is to supervise that the measure does not stray too far from its purpose (Art. 49 Abs. 2 VStR⁴). Its presence can be waived by the investigated company at any time; and
6. Keep constant contact with the CEO and the GC and, if applicable, with the external attorney. They decide whether to cooperate with the Secretariat of the Competition Commission under the bonus scheme.

The Response Team should obtain an overview of the pending investigation activities by examining the search warrant as well as the allegations, initiate personnel and organizational measures, and inform other offices in the company or group. All Response Team members should have access to an action statement on the Response Team’s tasks and on the review of search warrants.

During the dawn raid, the means of communication of the company are limited, e.g. because the telephone connections are cut off during the dawn raid. That is why it is often easier if the external attorney maintains the contact with the parallel investigations abroad. Comparing the scope and the allegations of the two authorities is crucial at this stage.

Execution

Accompanying the Search

The investigators have comprehensive investigative powers. In principle, they may search all business premises and, if necessary, also private residences (home-offices) of the persons to be investigated and of third parties, as well as vehicles (Art. 48 para. 1 VStrR). In addition, the containers located in these premises and data, which can be accessed in the searched premises (access principle). Furthermore, records of any kind, whether on paper or on another data carrier, i.e. written documents, photographs, video or audio recordings (Art. 50 para. 3 VStR). Rooms that cannot be searched immediately are usually sealed for evidence preservation reasons until the search.

The investigated company has the right, but not the obligation, to participate in the search (Art. 49 para. 2 VStR). In exercising this right, Support Team members may accompany the Investigators in order to ensure that the activity can be carried out in accordance with the law while protecting the interests of the company and with the least possible impact internally and externally. The improper fulfilment of the duty to provide information as well as tampering with or breaking seals may be sanctioned. Sanctions may be imposed on the company for an amount of up to CHF 100’000 (Art. 52 KG) and on natural persons who intentionally fail to comply with up to CHF 20’000 (Art. 55 KG). The Support Team should be able to contact the Head Response Team by telephone at all times during the raid in order to inform him about the course of the search, if necessary.

In order to prevent the breaking of a seal by employees, which is punishable by imprisonment (Art. 290 StGB⁵), the Support Team should visibly sign the sealed room immediately, as employees may not intuitively understand the meaning of the official seal.

Due to the use of electronic communications equipment and storage media, the IT experts (in-house or service providers) should be available during the dawn raid at locations with appropriate staffing so that they can provide guidance on how their IT systems work as well as administrator rights. Usually, electronic data is only secured but not searched on site. The owner of the data is further entitled to participate in the subsequent search of the electronic data at the premises of the Secretariat of the Competition Commission through its own representation and/or an attorney (Art. 50 para. 3 VStR). It is not recommended to waive this right, especially to designate business secrets. The search of electronic data can also be objected to and sealing can be requested (Art. 50 para. 3 VStrR).

The Investigators will usually copy the data collected by the search warrant, save and index them for the subsequent search.

Interrogations:

The Investigators may interrogate representatives of the company as witnesses (Art. 42 para. 1 KG) on the day of the raid or in the following days. The company is entitled to have its external lawyer present. No substantive questions should be answered without an attorney present. The individual interrogated must be instructed about its rights, especially the right to remain silent. The authority will try to interrogate as many individuals as possible during the day of the raid and the following days. Interrogations typically take place in the offices of the authority or at the next police station.

Final meeting

After the raid itself has been executed, the Head Response Team and the external attorney should discuss the next steps with the Head Investigator. In this final meeting, they may inspect the evidence found during the raid, comment on its contents and, if necessary, request that it be sealed. As papers, electronic communication and other records seized are very likely to include private and privileged information, it is strongly recommended to seal all documents and data seized. Especially in cases of parallel raids abroad this is crucial, as otherwise documents and date seized in both raids may not any longer be protected.

A signed list of all copies and extracts that have been produced during the search must be requested. The objection to the seizure and removal of documents and data will be formally noted on file. It must be checked whether all items seized are covered by the scope of the search warrant and whether they are listed in the search and seizure protocol (cf. Art. 47 para. 2 VStrR).

At the end of the final meeting, the principles of the future cooperation should be discussed. Outstanding points, such as the submission of additional documents and data, are to be clarified. The date and time of the end of the search is to be recorded on the search warrant. Efforts are to be made to ensure that the Investigators refrain from making a press release.

iv) Follow-up to the search

The formal follow-up on the dawn raid serves to record the dawn raid process as well as to record and prepare all seized documents and data for internal assessment. The members of the Support Team provide their records of the investigation activities and produce a detailed chronology. For this purpose, all handwritten notes, reports, and transcripts drawn up by the persons involved are sorted and compiled into records.

On the substance, the follow-on activity focuses on assessing the legal risk. If it turns out that employees have caused potential anti-competitive behavior, the companies concerned regularly feel compelled to start an internal investigation. Part of this defense strategy is the assessment of cooperating with the authority (i.e. application for immunity, for leniency, for leniency plus). This strategy needs to be coordinated with parallel investigations abroad.

Footnotes

1. §187 of the German Act against Restraints on Competition (GWB) is available on the following website: https://www.gesetze-im-internet.de/gwb/__187.html.
2. The agreement is available on the following website: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A22014A1203%2801%29.
3. https://www.bundeskartellamt.de/SharedDocs/Meldung/DE/Pressemitteilungen/2022/22_12_2022_Jahresrueckblick.html.
4. Federal Act on Administrative Criminal Law.
5. Swiss Criminal Code.

Authors

Dr. Marcel Meinhardt
Dr. Astrid Waser
Dr. Benoît Merkt
Claudia Walz

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