FTC and CFTC to Share Confidential Information, Increases Investigation Risks

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The U.S. Federal Trade Commission and the U.S. Commodity Futures Trading Commission signed a memorandum of understanding that will facilitate the sharing of non-public information for “official law enforcement purposes,” and increase investigation risks for firms.

On April 12, 2011, the U.S. Federal Trade Commission (FTC) and the U.S. Commodity Futures Trading Commission (CFTC) announced they signed a memorandum of understanding (MOU) that will facilitate sharing of non-public information for “official law enforcement purposes.” The short (two page) MOU outlines the procedure by which the FTC and CFTC may request to exchange non-public information to assist them in enforcing the laws in their respective jurisdictions. During an investigation, the FTC and CFTC gather detailed information from the companies subject to the investigation, which can contain sensitive financial data, trade secrets, business strategy, commodity market evaluations, draft contracts and even personal information. The MOU requires that the agencies “take all actions reasonably necessary to preserve, protect and maintain all privileges and claims of confidentiality” related to the information collected. The MOU highlights some of the FTC’s enforcement priorities and raises strategic considerations for companies that provide confidential information to these agencies.

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Published In: Antitrust & Trade Regulation Updates, Business Organization Updates, Energy & Utilities Updates, Finance & Banking Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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