Appendix D. Protocol for Coordination in Merger Investigations Between the Federal Enforcement Agencies and State Attorneys General

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APPENDIX D

PROTOCOL FOR COORDINATION IN MERGER

INVESTIGATIONS BETWEEN THE FEDERAL

ENFORCEMENT AGENCIES AND STATE

ATTORNEYS GENERAL

Some mergers and acquisitions may become subject to simultaneous

federal and state investigations by either the Antitrust Division of the

U.S. Department of Justice (“Antitrust Division”) or the Federal Trade

Commission (“FTC”), and one or more State Attorneys General. To the

extent lawful, practicable and desirable in the circumstances of a

particular case, the Antitrust Division or the FTC and the State Attorneys

General will cooperate in analyzing the merger. This protocol is

intended to set forth a general framework for the conduct of joint

investigations with the goals of maximizing cooperation between the

federal and state enforcement agencies and minimizing the burden on the

parties.

I. CONFIDENTIALITY

These joint investigations are generally nonpublic in nature and will

routinely involve materials and information that are subject to statutes,

rules, and policies governing when and how they may be disclosed.

Participating agencies are required to protect confidential information

and materials (“confidential information”) from improper disclosure.

Confidentiality obligations continue even if a receiving agency

subsequently decides to pursue an enforcement avenue different from

that chosen by one or more of the other agencies.

Agencies receiving confidential information from another agency

(“the originating agency”) will agree to take all appropriate steps to

maintain its confidentiality, including:

1. timely notification to the originating agency of discovery

requests or public access requests for that information;

2.a vigorous assertion of all privileges or exemptions from

disclosure claimed by the originating agency;