Confidentiality of Merger Review Disclosures Toolkit

This Toolkit includes resources that provide guidance on the confidentiality of submissions made by merging parties and third parties to the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) during the merger review process, including under the Hart-Scott-Rodino Act, in voluntary submissions or in responses to compulsory process. This Toolkit can be used by counsel providing documents in response to a voluntary request letter (or access letter), civil investigative demand (CID), subpoena, or as part of an HSR form concerned about how that information may be shared, including with other federal enforcement agencies, state attorneys general, or non-US enforcement agencies.

Practical Law Antitrust

Merging parties and third parties, such as competitors and customers, generally provide a lot of confidential information to the antitrust agencies, including the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) during the merger review process, either:

  • Voluntarily, such as in response to a voluntary request letter, also known as an access letter.

  • In response to compulsory process, such as a civil investigative demand or subpoena.

Additionally, where a transaction is reportable under the Hart-Scott-Rodino (HSR) Act, merging parties generally provide a lot of confidential information to the antitrust agencies as part of or in attachments to the HSR form.

The FTC and DOJ may seek to, or be asked to, share a producing party's confidential materials submitted as part of the merger review process with other enforcement agencies reviewing the merger or investigating its competitive effects, including:

  • Non-US enforcement agencies.

  • State attorneys general.

  • Federal enforcement agencies.

This Toolkit is a collection of continuously maintained resources designed to assist counsel in ensuring that confidential materials submitted to the federal antitrust agencies are protected from disclosure to third parties to the extent possible under the law. This Toolkit includes resources that explain the types of protections available and that contain sample language. Counsel can use the sample language in confidential submissions to the agencies to ensure those materials are identified as confidential and receive all available protections.

 

Practice Note

 

Standard Documents and Clauses

 

Checklist

 
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