International Waivers of Confidentiality in FTC Antitrust Investigations

The FTC encourages all parties to investigations that involve non-U.S. competition authorities to consider whether they will provide a letter to the FTC that waives the confidentiality provisions of the Hart Scott Rodino Act, FTC Act, and FTC Rules of Practice to the extent necessary to allow staff of the FTC to share confidential information with one or more non-U.S. competition authorities reviewing the matter. Waivers enable more complete communication, cooperation, and coordination among competition agencies concurrently reviewing a matter. By permitting cooperating agencies to discuss or otherwise exchange the individual’s or company’s confidential information, a waiver enables agencies to make more informed, consistent decisions, and coordinate more effectively, often expediting the review.

FTC staff and the Antitrust Division of the Department of Justice have created a model waiver of confidentiality for use in civil matters involving non-U.S. competition authorities  (“Model Waiver”), for use by parties and third parties. Using the Model Waiver will significantly reduce the time spent negotiating individual waivers. The Model Waiver was developed with the intention that it will be used in almost all civil matters.

In addition, FTC staff and the Antitrust Division of the DOJ have drafted a set of Frequently Asked Questions to accompany the Model Waiver. The FAQ provides an introduction to waivers of confidentiality and describes the confidentiality rules applicable to the information provided pursuant to the Model Waiver. It also describes the process for providing a waiver of confidentiality to either agency and explains specific provisions of the Model Waiver.

For information about waivers of confidentiality more generally, the International Competition Network has created a report, Waivers of Confidentiality in Merger Investigations, as part of its work to examine procedural aspects of multijurisdictional merger review.