The Federal Trade Commission staff and the Department of Justice’s Antitrust Division today issued a joint model waiver of confidentiality for individuals and companies to use in merger and civil non-merger matters involving concurrent review by the DOJ or FTC and non-U.S. competition authorities.
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 is designed to streamline the waiver process to significantly reduce the burden on individuals and companies, as well as to reduce the agencies’ time and resources involved in negotiating waivers.
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.
Waivers enable more complete communication, cooperation and coordination between competition agencies concurrently investigating 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.
To promote greater transparency and better understanding of the FTC’s and DOJ’s and policies and practices related to waivers, the FTC staff and DOJ also released a Frequently Asked Questions (FAQ) document to accompany the model waiver. The FAQ provides introductory information on waivers and on the confidentiality rules applicable to the information provided under the model waiver. It also describes the process for providing a waiver to either agency and explains specific provisions of the model waiver. By issuing the model waiver and accompanying FAQ jointly, the Federal Trade Commission and Department of Justice hope to facilitate parties’ use of waivers generally and, in particular, the model waiver.
Further information about waivers of confidentiality, the model waiver of confidentiality, and FAQ are available here.
As more U.S. companies and consumers do business overseas, more FTC work involves international cooperation. The Office of International Affairs serves both as an internal resource to Commission staff on international aspects of their work and as an official representative to numerous international organizations. In addition, the FTC cooperates with foreign authorities through formal and informal agreements. The FTC works with more than 100 foreign competition and consumer protection authorities around the world to promote sound policy approaches. For questions about the Office of International Affairs, send an e-mail to [email protected]. Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases and the FTC International Monthly for the latest FTC news and resources.