Becoming a Third-Party Witness When Competitors or Suppliers Merge

By on April 21, 2017

Steven J. Cernak, Schiff Hardin LLP

To determine if a merger is good or bad for competition, the Federal Trade Commission and the Department of Justice Antitrust Division need information about the merging parties and the relevant industries. That information comes through a Hart Scott Rodino Act (HSR) filing. Throughout this process, the reviewing agency will reach out to third parties – customers or competitors – for relevant information, usually via a voluntary phone interview with a knowledgeable executive.

Companies preparing to respond to enforcement requests for information should begin by answering three basic questions: Are we the witness the government really wants? Do we have the type of evidence the government wants to hear? And are we prepared to go wherever these inquiries lead?

While the agencies have done a good job of keeping these informal interviews secret, the merging parties might correctly guess the interviewees and request a summary of the discussion. Sometimes the initial phone call from the agency can lead to more calls or requests for documents and data.

If there is to be an interview, the company should get assurances that it’s not a target. Gather answers to typical questions asked by the agency and be prepared to provide them free of company or industry jargon. Set up the ground rules for the call and assure they are followed. If the interview leads to document production or sworn testimony, the same care must be taken as when the company is involved in litigation.

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