Both companies deny having participated in any agreement with their competitors to affect the tenders.
Chile.- Two months after the presentation of the accusation by the National Economic Prosecutor's Office (FNE) to the Tribunal for the Defense of Free Competition (TDLC) against Dreams, Enjoy, Marina del Sol, and five of their top executives for having colluded to affect the outcome of the casino tenders in 2020 and 2021, the companies mentioned are defending themselves.
Last Friday, November 29, the deadline to respond to the TDLC's requirement, the accused parties responded to the requirement imposed by the FNE on October 1, 2024, and rejected the complaint.
In the response to the requirement that was sent to the TDLC on Friday, Dreams, represented by lawyers Julio Pellegrini and Pedro Rencoret, presents its arguments to ask the court "to completely reject it, as it is based on incorrect premises" of the FNE's presentation, which is mainly based on the fact that these operators competed only for the renewal of the permits they were already operating and did not participate in the other processes, the defenders of Dreams recalled.
Initially, the company states in the document that it has not participated in any agreement or coordination with the other required parties, but decided autonomously the strategy of participating only in the tenders of those six places where it had a permit, alluding to the definition adopted by its board prior to the supposed agreement that, the FNE accuses, there was among the three operators.
It also mentions that Dreams “never gave a signal regarding the places for which it would participate” in the tenders, as it expressly ordered its executives “to establish companies for the 12 places” that would be tendered in order to prevent the other competitors from recognizing its strategy.
Moreover, it says that the company “had incentives to participate only in the renewal of its permits and not to compete for the others,” due to the complex economic scenario the country was going through. The idea was to secure its places for another 15 years, in order to recover the substantial investment made in such venues. According to its lawyers, Dreams presented competitive economic offers for the concessions it wanted to secure.
On the other hand, they assure that “it was not possible to affect the investigated tenders” by this company or by the supposed agreements with its competitors, as these were processes open to dozens of potential competitors, both Chilean and foreign. Because of this, it was not possible to affect the competition “on the field,” as it is stated, given the characteristics of the industry where there can be up to three casinos per region with a minimum distance of 70 kilometers between one another.
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The document also assures that “it could not have affected the consumers, nor the social interest or the municipalities,” as this industry is subject to a “strict regulation, in which the tax rate to be charged for entering the establishments, the commissions, and the percentages of profit to be obtained by their operation are defined by the SCJ” (Superintendence of Casino Games).
Finally, the lawyers of Dreams argue that their client “should not be fined or sanctioned, and even less so for the excessive amounts requested by the FNE”. The prosecution demanded a fine of 126,806 UTA (CLP101.386m today), which for the casino company, “is absolutely disproportionate and contradictory with the guidelines followed” by the FNE in a special guide defined on this matter.
Advised by the law firm Claro & Cía., both Enjoy and Henry Comber, the president of the company, defended themselves against the accusation of the FNE and requested the TDLC that the requirement presented by the FNE be rejected in all its parts.
“Ultimately, Mr. Comber's and Enjoy's actions in the Tender Processes are absolutely inconsistent with the actions of an economic agent that is part of a supposed collusive agreement. H. Tribunal, the thesis of the Requirement regarding Mr. Comber and Enjoy simply does not hold up in the real world,” both responses emphasize.
Furthermore, the writings argue that “neither Mr. Comber nor Enjoy, were part of a supposed collusive agreement to affect the results of the Tender Processes. For the time being, the FNE's own reserved investigation contains multiple pieces of evidence that confirm that this is the truth and, incidentally, dismiss the erroneous and partial narrative made by the Requirement of Mr. Comber's and Enjoy's participation in the Tender Processes.”
The defense of Enjoy and Comber maintains that the only thing that the requirement against Mr. Comber and Enjoy presents is a “self-interested testimony of what Mr. Comber supposedly said ‘in passing’, recounted by Mr. Nicolás Imschenetzky, while applying for the benefit of compensated leniency” and adds that this testimony has no factual basis, nor legal merit.
In their response, they emphasize that Enjoy did compete in the tender processes and that to prove this, there is numerous hard evidence accompanied to the Investigation that shows that it did so very aggressively to renew the permits of the casino places it operated and, even, that it made substantial efforts, accredited in the Investigation, to dispute new casino places to the incumbents who had licenses in other parts of the country.
See also: What the head of the SCJ said about the case of alleged collusion of casinos in Chile
“These pieces of evidence dismiss –outright– the existence of the supposed agreement of respect invoked in the Requirement in relation to Mr. Comber and/or Enjoy,” they pointed out and noted that to renew the places it operated, “Enjoy presented the highest economic offers of the entire industry.”
Under that framework, the defense of the former president of Enjoy maintains that “the participation that Mr. Comber has in the facts of this case is one and only one: he ensured that Enjoy competed intensely in the Tender Processes. And he achieved it.”
To conclude, both responses to the regulator's requirement indicate that “we have demonstrated that the FNE has imposed a burden that it will never be able to relieve. If it wants to succeed in this litigation regarding Mr. Comber and Enjoy, it must demonstrate, under a standard of ‘clear and conclusive proof’, the supposed primacy of its ‘alternative theory’ over the truth and it will not be able to do so. The reality is different. Neither Mr. Comber, nor Enjoy, were part of the supposed collusive agreement imputed.”
Nicolás Imschenetzky, president of Marina del Sol also presented his response to the TDLC, represented by lawyers Lorena Pavic and José Pardo. The document states that “it ratifies the facts recognized by Mr. Imschenetzky before the FNE and that motivated this procedure”.
The text also highlights that the president of Marina del Sol “has provided evidence to the Prosecutor's Office” and has “fully complied with the requirements” to access the benefit of exemption from fines.
Nevertheless, the document indicates that the executive opposes the request for condemnation in costs, made by the FNE, as that is “incompatible” with the attitude of collaboration shown. Additionally, they ask that the TDLC expressly declare that Imschenetzky is “exempt from criminal responsibility for the crime of collusion”.
