USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
agreements have been a particular focus of review. Typically, parties amend ancillary agree - ments rather than jeopardise clearance of the entire transaction. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Complaints and Agency-solicited input from customers, suppliers, competitors and other industry participants often meaningfully inform merger review. Customer complaints are typi - cally most influential; however, input from other industry participants can also be important in identifying non-reportable transactions or caus - ing the Agencies to look more closely at certain aspects of a transaction. Third parties may challenge transactions in dis - trict court, although such actions are rare. See 1.3 Enforcement Authorities . 7.2 Contacting Third Parties The Agencies routinely seek input from custom - ers, suppliers, competitors and other third par - ties to confirm or complement staff’s competitive analyses of proposed transactions or remedies. The Agencies frequently interview customers, suppliers and competitors. The Agencies may also issue subpoenas for depositions (DOJ) or investigational hearings (FTC) and frequently request documents and information from third parties either voluntarily or through Civil Investi - gative Demands (CIDs) and subpoenas. 7.3 Confidentiality All materials submitted by the Acquiring and Acquired Persons under the HSR Act are con - fidential by statute and are exempt from dis -
closure under the Freedom of Information Act. Materials are subject to public disclosure only if the transaction is challenged by one of the Agencies. The “fact of filing” is also confidential, unless disclosed by the parties themselves, or unless early termination is requested and grant - ed, in which case the parties’ names are pub - lished in the Federal Register and on the FTC’s website. Additionally, confidential information may be disclosed to a committee or subcom - mittee of Congress. The confidentiality of information obtained from third parties through informal phone calls and meetings, or through formal Civil Investigative Demands (CIDs), and the identity of third parties under either process, is statutorily protected. 7.4 Co-Operation With Other Jurisdictions The USA has bilateral and/or multilateral co- operation agreements including commitments to consult and co-operate on competition mat - ters and to properly maintain the confidentiality of shared information with 13 jurisdictions: Ger - many, Australia, the EU, Canada, Brazil, Israel, Japan, Mexico, Chile, Colombia and Peru. The Agencies have also entered into less-formal, non-binding memoranda of understanding with competition agencies in Russia, the People’s Republic of China, India and South Korea. The Agencies also co-operate through multilateral organisations including the Organisation for Eco - nomic Co-operation and Development (OECD) and International Competition Network (ICN). When competition issues span multiple juris - dictions, the Agencies may exchange views and information with their foreign counterparts; however, to share information submitted by the parties, the Agencies must first obtain a waiver of confidentiality. Parties typically agree to such
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