FTC and DoJ release updated model confidentiality waiver for use in cross-border investigations

On 25 September 2013, the Federal Trade Commission (FTC) and the Department of Justice’s (DoJ’s) Antitrust Division issued an updated joint model waiver of confidentiality for use by parties in cross-border merger and civil non-merger investigations. The model waiver outlines the terms under which a party subject to a multi-jurisdictional investigation may waive its confidentiality protections in order to facilitate the sharing of confidential information between US and non-US competition authorities. In addition, the agencies released a set of frequently asked questions (FAQs) touting the benefits of signing such a waiver, outlining the process for submitting it and detailing the protections afforded to the confidential information.

With antitrust enforcement having expanded exponentially over the last two decades to more than 130 countries, the DoJ and the FTC increasingly seek confidentiality waivers from parties. As explained in the accompanying press release issued by the agencies, waivers generally allow for greater co-operation and co-ordination between competition authorities, enabling agencies ‘to make more informed, consistent decisions and co-ordinate more effectively, often expediting the review’. The agencies acknowledge that providing a waiver is entirely voluntary and within the party’s sole discretion and state that ‘a decision not to provide a waiver will not prejudice the outcome of the DoJ’s or FTC’s investigation’. The FAQs take care to note, however, that ‘a decision to not grant a waiver’ may have ‘practical effects’ such as increasing the length of an investigation or causing inconsistent outcomes across competition authorities.

According to the FTC and the DoJ, the new model waiver ‘reflects both agencies’ recent experience with waivers’ and is intended to update and replace earlier forms…

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