In all dealings with the ACCC, any decision to co-operate with the regulator’s investigations needs to be balanced with the desire to protect the business’ interests, particularly the preservation of confidentiality in privileged or commercially sensitive information.
Unlike a section 155 notice or a search and seizure warrant, which are governed by the relevant sections of the TPA, the obligations and rights of each party during ACCC informal information requests are less clear cut. The ACCC’s website contains an Information Policy (Information Policy) which provides some guidelines as to the collection, use and disclosure of information by the ACCC.
Co-operating with the ACCC’s enquiries can lead to a speedier and more cost effective resolution.
Failure to provide adequate information from the outset can be misleading and may result in the Commission exercising its formal powers under section 155 of the TPA, particularly if it believes a party is still capable of furnishing information, producing documents or giving evidence relating to a potential contravention of the TPA.
The ACCC may also revert to its statutory powers where a party seeks to attach conditions to the provision of information that would constrain the ACCC in the exercise of its functions.
Businesses need to question the relevance of the information requested in the context of the ACCC’s investigation. They should consider what the ACCC is really looking for and what may be driving their requests. Target your information to the specific complaint contained in the information request.
Parties should be aware of how the ACCC deals with commercially sensitive or confidential information before voluntarily providing the regulator with any material. A lack of foresight into what may happen to commercially sensitive or confidential information may result in parties’ inadvertently disclosing information that may have a substantial adverse effect of the business.
The Information Policy sets out the ACCC’s policies in relation to the treatment of confidential information. Whilst the ACCC is committed to treating confidential information responsibly and in accordance with the law, the Commission may be legally required to produce confidential information down the track, including providing information to third parties without prior notification and consultation.
Parties should be mindful that information that would otherwise be privileged may be waived in circumstances where the parties voluntarily disclose the privileged communication to a third party, such as the ACCC, particularly where the privileged communication is voluntarily disclosed to the ACCC on a non-confidential basis. For further information on legal professional privilege can be found here.
Who does this affect? All corporations seeking to undertake mergers or make acquisitions in Australia.
What do you need to do? These corporations should speak to one of our competition experts to consider whether a failing firm argument would be relevant to merger assessment.