The Federal Trade Commission’s (FTC’s) Bureau of Competition (the “Bureau”) recently issued a statement identifying concerns with commonly used contractual provisions.

The Bureau’s statement indicated that confidentiality provisions, nondisclosure agreements, and “notice of agency contact” clauses have the potential to impede FTC investigations by hindering voluntary interviews that enforcement staff wants to have with other market participants.

The Bureau’s focus seems to be on voluntary interviews and its belief in the chilling effect the identified contractual provisions can have on those interviews. Interestingly, the Bureau’s statement acknowledged that the FTC has the authority to obtain information via compulsory processes. However, the FTC clearly hopes to avoid being required to use such processes in every situation. Specifically, the statement indicated that the FTC believes the identified provisions may be void as against public policy, insofar as the provisions either hinder a party from speaking freely with the FTC or require a party to disclose information to an investigative target about the FTC’s outreach or communications. Finally, the statement went so far as to note that actions by investigative targets that obstruct FTC investigations and enforcement actions may be viewed as unlawful and rise to the level of a criminal violation.

* * *

For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte:

E. John Steren
Member of the Firm
Patricia Wagner
General Counsel / Chief Privacy Officer
Jeremy Morris
Member of the Firm
Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.