Antitrust Confidentiality Waiver Updated By US Federal Trade Commission And Department Of Justice

Keywords: antitrust, confidentiality waiver, FTC, DOJ,

On September 25, 2013, the US Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) jointly released an updated model waiver of confidentiality for use in civil matters involving non-US competition authorities. Confidentiality waivers allow for the sharing of confidential company information among the competition agencies of different countries and jurisdictions.

The revisions to the FTC/DOJ confidentiality waiver are a reflection of the growing international cooperation between US and international antitrust authorities and the desire by the US agencies to eliminate obstacles to cooperation with other antitrust authorities. In the last year alone, the FTC coordinated with 50 different international authorities on 26 antitrust investigations. The updated model waiver facilitates the granting of such waivers by clarifying how confidential and privileged information subject to the waiver will be treated, while also enabling the parties to better assess the pros and cons of granting a waiver.

Differences in Updated Confidentiality Waiver

There are several key updates to the model confidentiality waiver. First, the model waiver revises how the FTC and DOJ treat privileged information. The model waiver makes clear that the FTC and DOJ will not use the confidentiality waiver to seek information that is protected under US legal privilege rules. If the FTC and DOJ receive information from another competition authority that would be legally privileged in the United States, the agencies will treat such information as if it were inadvertently produced and will return, sequester or destroy that information in accordance with the Federal Rules of Evidence and Federal Rules of Civil Procedure. To make the privilege determinations easier, the agencies have suggested that companies clearly identify any privileged documents provided to international competition agencies.

The model waiver also makes clear that it applies to both merger and non-merger civil investigations and in matters where there is cooperation with one or more international competition authorities.

Finally, for the treatment of confidential information disclosed to non-US authorities and received by the FTC and DOJ, the model waiver provides clarity by separating such information in two sections. The waiver provides that information disclosed by the FTC and DOJ will be treated as confidential by...