Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Survey of antitrust and competition practitioners reveals concerns over use of confidential information by regulatory agencies, (Apr 18, 2014)

By Edward L. Puzzo, J.D.

The U.S. Chamber of Commerce yesterday announced the release of a study regarding the treatment of confidential information by antitrust and competition regulatory agencies. The study surveyed the experiences of competition and antitrust law practitioners in many different countries regarding the extent to which antitrust and competition law enforcement agencies’ policies and procedures were transparent and protected due process during investigations and other administrative proceedings.

The survey produced 94 responses concerning 34 different agencies. Among other findings, the survey results revealed:

Submitters of information designated as confidential had a much greater confidence in the agency striking the correct balance between confidentiality and disclosure than did investigation targets.
In claims of competition violations, 85% of those surveyed stated that agencies routinely used confidential information that can be difficult to assess in order to mount a defense.
Nearly half of those surveyed believed that agencies required very little justification for why information should be designated confidential.
Two-thirds of respondents indicated that agencies did not provide confidential information to an investigation target before deciding to charge a target with an alleged violation. Sixty percent stated that even after a violation has been charged, the agencies did not provide confidential information obtained from the complainant or third parties.
Respondents generally agreed with the practices in place regarding public disclosure of confidential information.
Over two-thirds of respondents felt agencies needed to work on being more consistent regarding confidential information, or that procedural deficiencies in investigations needed improvement.

The survey was produced by the Investigative Process Project (Project) of International Competition Network (ICN), the global body of the world’s antitrust regulators due to meet next week in Morocco. The Project is chaired jointly by the Federal Trade Commission and the European Commission’s Directorate-General for Competition, and the survey was conducted non-government advisors to the ICN.

News: Antitrust

Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Survey of antitrust and competition practitioners reveals concerns over use of confidential information by regulatory agencies, (Apr 18, 2014)

By Edward L. Puzzo, J.D.

The survey produced 94 responses concerning 34 different agencies. Among other findings, the survey results revealed:

Submitters of information designated as confidential had a much greater confidence in the agency striking the correct balance between confidentiality and disclosure than did investigation targets.
In claims of competition violations, 85% of those surveyed stated that agencies routinely used confidential information that can be difficult to assess in order to mount a defense.
Nearly half of those surveyed believed that agencies required very little justification for why information should be designated confidential.
Two-thirds of respondents indicated that agencies did not provide confidential information to an investigation target before deciding to charge a target with an alleged violation. Sixty percent stated that even after a violation has been charged, the agencies did not provide confidential information obtained from the complainant or third parties.
Respondents generally agreed with the practices in place regarding public disclosure of confidential information.
Over two-thirds of respondents felt agencies needed to work on being more consistent regarding confidential information, or that procedural deficiencies in investigations needed improvement.

News: Antitrust