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From Antitrust Law Daily, September 25, 2013

Agencies release joint model waiver of confidentiality for international civil matters

By Jeffrey May, J.D.

In an effort to cut down on the time it takes to negotiate waivers of confidentiality protections for use in international merger and civil non-merger investigations, the FTC and Department of Justice Antitrust Division today released a joint model waiver of confidentiality. At the same time, the agencies released a Frequently Asked Questions (FAQ) document to accompany the model waiver.

The release of the documents was announced by FTC Chairwoman Edith Ramirez at the opening session of Georgetown Law Center’s Seventh Annual Global Antitrust Enforcement Symposium this morning. In her remarks, Ramirez noted that the provision of confidentiality waivers can facilitate cooperation among agencies investigating a civil matter and assist in expediting the merger review or conduct investigation. However, she noted that experience has shown that it sometimes takes lengthy negotiations to reach these agreements.

Confidentiality statutes and rules generally preclude the staff of the U.S. antitrust agencies and the staff of non-U.S. competition authorities from discussing the confidential information of a company or individual. Companies and individuals may choose to waive those confidentiality protections in order to permit the agencies and the non-U.S. competition authorities to discuss this confidential information.

According to the FTC, a waiver provides the terms on which an individual or company agrees to waive statutory confidentiality protections to the agency that originally received the company’s confidential information. The model waiver updates and replaces the agencies’ prior forms. It reflects both agencies’ recent experience with waivers, incorporating updated language and provisions, including a provision addressing the agencies’ treatment of privileged information.

A waiver of confidentiality is voluntarily provided by an individual or company involved in a civil matter. A waiver describes an agency’s policy regarding its treatment of information received from another competition agency under a waiver, although it is not an agreement signed by the agency. A waiver allows for the sharing of confidential information only among the competition agencies listed in the waiver, the agency noted.

The FAQ provides introductory information on waivers and on the confidentiality rules applicable to the information provided under the model waiver, according to the FTC. The FAQ also describes the process for providing a waiver to either agency and explains specific provisions of the model waiver.

Ramirez remarks. FTC Chairwoman Ramirez noted the release of the joint model waiver of confidentiality as she discussed challenges facing antitrust agencies as they review international mergers and investigate anticompetitive conduct at the Georgetown Symposium. The waivers assist the agencies in overcoming one of those challenges—the legal limits on cooperation among international agencies. Ramirez noted that waivers are especially helpful where a large merger must be reviewed by dozens of agencies around the globe.

Procedural differences among antitrust authorities can be another enforcement challenge, according to Ramirez. There are times when investigations may languish at an agency or where an agency might fail to meet with stakeholders in an effort to resolve a matter, the chairwoman noted.

Noting that international antitrust cooperation is “pervasive and productive,” Ramirez said that in the last year the agency has worked with more than 50 agencies on 26 competition investigations. The chairwoman hinted about another impending international cooperation agreement between the U.S. antitrust agencies and a foreign counterpart. However, she did not identify the other country involved in the negotiations.

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