Shedding its mantle of secrecy, the Federal Trade Commission will disclose some information about ongoing investigations into nonmerger deals, the agency has announced.
The revised FTC policy will permit agency officials to confirm the existence of antitrust investigations into joint operating agreements and all other partnership arrangements that don't involve full-asset mergers.
The new policy, which went into effect Nov. 16, applies to nonmerger transactions in all industries, including healthcare.
But the agency will permit limited disclosures in cases in which a target has publicly revealed the investigation or the investigation and its target have received "substantial publicity," the FTC said.
Under the previous policy, the FTC could disclose industrywide investigations or other probes that involved potential significant economic harm, but it could not name specific targets of any investigation. The agency would neither confirm nor deny specific investigations.
The FTC generally does not announce investigations or name targets. It will usually do so only if it seeks to block a transaction in court or it settles a matter with a consent decree.
David Marx Jr., a healthcare antitrust attorney with McDermott Will & Emery in Chicago, said the new policy may cause uneasiness for parties under investigation, but it allows them to tell their side of the story.
"Most investigations do not result in an enforcement action," Marx said. "That's a message (investigation targets) should get out there. In any case, they should be prepared to answer the question, `Are you under investigation?' "
The revised policy mirrors the current disclosure policy of the U.S. Justice Department's antitrust division, said FTC spokeswoman Victoria Streitfeld.
With the approval of a director or deputy director, the FTC may also reveal additional information, such as the nature or scope of an investigation, according to the notice of the policy change published Nov. 13 in the Federal Register. That would happen only in "unusual cases," the FTC said.
The FTC will accept public comments on or before Dec. 14 and may reconsider the policy, Streitfeld said.
