FTC Targets Contractual Restrictions On Voluntary Cooperation

The staff of the Federal Trade Commission (FTC) Bureau of Competition issued a statement on June 15, 2023, sternly criticizing the use of confidentiality and nondisclosure agreements that "impede" the FTC's ability to conduct voluntary interviews with market participants in antitrust investigations. According to the Bureau of Competition, such contracts can "chill" employees' willingness to speak with agency staff. This Update dissects the recent statement and suggests best practices for responding to voluntary interview requests from government agencies.

According to the Bureau of Competition, investigation targets cannot contractually prevent, limit, or hinder employees from speaking with agency staff. The Bureau of Competition argues that such provisions are "contrary to public policy and therefore unenforceable." Several federal agencies have taken a similar stance, including the U.S. Securities and Exchange Commission (SEC), National Labor Relations Board