Mrs.Kanwaljeet Kaur Soni And The Association of Certified Fraud Examiners Inc. & Others

Case No. 05 of 2023 Page 1 of 8 COMPETITION COMMISSION OF INDIA Case No. 05 of 2023 In Re: Mrs. Kanwaljeet Kaur Soni D- 91, 4th Floor, Sushant Lok-2, Sector 56, Gurgaon, Haryana 122 011 …Informant And 1. The Association of Certified Fraud Examiners Inc. 716 West Avenue Austin, TX 78701 …Opposite Party No. 1 2. Netrika Consulting India Private Limited N-161, Saira Tower, Ground Floor, Gautam Nagar, Near Green Park Metro Station, New Delhi South, Delhi 110 049 …Opposite Party No. 2 3. The Open Thinking Academy Office # 208 Block #19 King Salman Bin Abdul Aziz Al Saud Street, Near Cosco, Dubai …Opposite Party No. 3 CORAM Ms. Ravneet Kaur Chairperson Ms. Sangeeta Verma Member Mr. Bhagwant Singh Bishnoi Member Case No. 05 of 2023 Page 2 of 8 Order under Section 26(2) of the Competition Act, 2002 1. The present Information has been filed by Mrs. Kanwaljeet Kaur Soni (hereinafter, the “Informant”) under Section 19(1)(a) of the Competition Act, 2002 (hereinafter, the “Act”) against the Association of Certified Fraud Examiners Inc., (hereinafter, ‘ACFE/ OP-1’), M/s Netrika Consulting India Private Ltd. (hereinafter, ‘NCIPL/ OP-2’), the Open Thinking Academy (hereinafter, ‘OTA/ OP-3’), (hereinafter OP-1, OP-2 and OP-3 collectively referred to as ‘Opposite Parties’ / ‘OPs’) alleging contravention of the provisions of Sections 3 and 4 of the Act. 2. It is stated that the Informant is engaged in service of providing study resources and coaching / training to potential candidates pursuing certification for a course, Certified Fraud Examiner (‘CFE’), conducted by ACFE/OP-1. It also offers consulting in the area of forensic accounting as well as fraud prevention. 3. It is stated that ACFE / OP-1, an association of persons, is a private, independent, organisation based in USA. The main objective of ACFE/OP-1 is reducing the incidence of fraud and white-collar crimes. ACFE/OP-1 conducts a certification course named Certified Fraud Examiners (‘CFE’) which can be earned by passing an examination. The qualifications required to be eligible for the CFE exam are set by the ACFE/ OP-1 through its Board of Regents. Further, the CFE credentials so earned by a person are required to be renewed every year by paying a certain amount of fee to ACFE/OP-1. The CFE accreditation has gained recognition and acceptability all over the world as an accreditation in the prevention, detection, and deterrence of fraud. 4. It is stated that NCIPL/ OP-2 is a private consulting and investigating agency that provides services inter alia in the area of forensic investigation, background checks, due diligence, general data protection regulation ('GDPR') compliance, security and risk consulting and Training and Certification. In 2019, OP-1 appointed OP-2 as its Authorised Training Partner (‘ATP’) for providing training and assistance for CFE certification in India. Case No. 05 of 2023 Page 3 of 8 5. It is stated that OTA / OP-3 is ATP of OP-1 for four countries, namely, the United Arab Emirates (UAE), Qatar, Oman, and Malaysia, since 2015. OP-3 provides services for two courses, namely, the CFE course as authorised by the ACFE and the Certified Internal Auditor (CIA). 6. It is averred that OP-1, being the first mover had the opportunity to partner with some of the biggest organizations and government agencies in the area of fraud detection and prevention. Further, as there were no new entrants, OP-1 remains the only fraud detection and prevention certification provider in the world owing to multifarious factors such as ecosystems, anti-fraud training and education which have helped it to increase its reach all over the world. 7. It has been stated that with the increase in the number of aspirants for the CFE course, the Informant had started helping in the examination to the candidates aspiring to become a certified member of OP-1 in the examination preparation. 8. In around 2009, the OP-1 started providing study support in the form of the ‘CFE Exam Prep Course’ through virtual and in-person training and subsequently also started appointing ATPs to help those candidates / aspirants preparing for the CFE exam. In 2019, the OP-1 appointed OP-2 as its ATP for the first time in India. This resulted in the creation of an ecosystem to trap down CFE aspirants and influence their decisions. 9. It is stated that Informant was one of the first independent study support providers and in running preparatory courses for CFE certification in India after she cleared the CFE exam in 2013. However, the Informant delivered the course material of OP-1 by explaining it more lucidly and at a price significantly less than that charged by OP-1. 10. It is further averred that there were communications between Informant and OP-1 in form of e-mail exchanges till 09.05.2019. OP-1, vide its e-mail dated 28.07.2014, had indicated to the Informant to become its ATP for India. However, in 2019, OP-1 communicated to the Informant that it is not possible to enter into a relationship of ATP with it as they have already signed an agreement with OP-2. Case No. 05 of 2023 Page 4 of 8 11. The Informant has delineated two relevant product markets, primary market and secondary market. ‘Expertise and credentials in fraud detection and prevention’ as primary relevant market and ‘preparation for clearing CFE exam’ as secondary relevant market. Informant has defined the Relevant Geographic Market as ‘whole world’. 12. The Informant has stated that OP-1 is the only entity which is providing CFE certification all over the world and there is no other entity that imparts an overall expertise in fraud detection and prevention. Further, OP-1 commands anywhere between 55% to 76% of the market share in the Relevant Markets. 13. The Informant has alleged that OP-1 is abusing its dominant position in the primary market by imposing unfair and discriminatory conditions through Section 5.07: Suspension and Expulsion in its Byelaws (14th Amended Byelaws of OP-1 membership Inc.) ‘Section 5.07 Suspension and Expulsion. The Board of Regents, in its sole discretion, shall have the authority to expel, suspend, or discipline a Member for the following. C. Engaging in deceit in pursuit of becoming an ACFE Member, obtaining the CFE credentials, (including submitting the false exam application information or receiving or providing improper assistance in relation to any person taking the CFE Exam), renewing ACFE membership (including the false reporting of Continuing Professional Education or failure to disclose character issues as required upon renewal), and any similar misconduct established by the disciplinary body of another professional organization to which the Member belongs.’ According to Informant, aforesaid Section 5.07 of the byelaws restricts the supply of preparatory services offered by third parties who are not ATPs of ACFE/OP-1, to aspirants preparing for CFE exams. 14. The Informant has stated that OP-1 has been alleging infringement of its copyrights and trademarks by Informant. According to Informant, OP-1 has issued various 'cease and desist’ notices over trademark rights or protection that it didn't possess, and has made the Informant to remove contents. The Informant has alleged that OP-2 threatened as well as defamed her by making false allegations of unauthorized use of the study material of OP- Case No. 05 of 2023 Page 5 of 8 1 and giving unauthorized coaching of the CFE course as she was not the ATP appointed by OP-1 in India.