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…
If you are registered and logged in to the site, click on the link below to read the rest of the Hogan Lovells briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from Hogan Lovells
News from The Lawyer
Briefings from Hogan Lovells
The decision of the US Court of Appeals has raised questions about how issuers should present their disclosures on conflict minerals under Exchange Act Rule 13p-1 and Form SD.
An interesting judgment was delivered by the Honourable J Majiki on 19 November 2013 in the Eastern Cape High Court, Port Elizabeth.
Analysis from The Lawyer
As international firms question their future in these small, closely linked markets, local lawyers too are eyeing the business environment with caution
Beyond the headline infrastructure projects, UK construction work is still recovering from the clobbering it took during the slump