FTC Announces New Policy Expanding Cooperation with States on Merger Investigations

The Federal Trade Commission today announced a new policy that will expand cooperative efforts between the Commission and the state Attorneys General in merger investigations. The procedure will increase information sharing with state antitrust officials, thus improving coordination where both state and federal agencies investigate the same transaction.

"The adoption of this policy confirms the FTC's commitment to work closely and efficiently with state law enforcement agencies," Chairman Robert Pitofsky said in announcing the new procedures. "During the past several years, under the leadership of former Chairman Janet Steiger, the Commission and the states embarked on a program of expanded cooperation. Today's action will further solidify that relationship by providing for more efficient and effective information sharing. This new policy will not only avoid duplication of effort, but will also help each team of enforcers to understand the legal and economic thinking of the other. Ultimately, this will lead to more efficient and sensible antitrust enforcement."

Maryland Attorney General J. Joseph Curran, Jr., chairman of the antitrust committee of the National Association of Attorneys General, said: "I am extremely pleased by today's announcement. Not only will this change in policy make better and more efficient use of scarce enforcement resources, but it will enable the FTC and States to work more effectively as partners in enforcing the antitrust laws."

The Hart-Scott-Rodino Act (HSR) requires that certain mergers, acquisitions and other transactions be reported to the Commission (and the Justice Department) before they are consummated. Under a 1992 program, the Commission has been providing participating states (who must submit a one-time certification of confidentiality to the Commission) with certain information and with limited analysis where the merging parties have waived federal confidentiality protections that otherwise limit federal-state cooperation.

The Commission's new policy provides that states may receive two types of information previously unavailable in HSR investigations: (1) information obtained from third parties, although the identity of third parties and other identifying information will continue to be protected unless the third party consents to disclosure, and (2) staff analytic memoranda, once the Commission has determined whether or not to challenge the merger. Requests for information from states will be resolved on a case-by-case basis, and access will be granted to the extent permitted by law and where not inconsistent with the Commission's law enforcement mission. The new policy will apply to all merger investigations, including but not limited to investigations conducted under the HSR Act.

The new policy was approved by the Commission 4-1, with Commissioner Roscoe B. Starek, III, dissenting.

A Federal Register notice will be published shortly that details the new policy and requests comments for a 30 day period.