In the United States, the federal antitrust laws generally apply to commercial banking and investment banking products and services in the same manner as to other economic sectors. Similarly, the Horizontal Merger Guidelines1 (Guidelines) of the U.S. Department of Justice (Department) and the U.S. Federal Trade Commission apply to the analysis of mergers across sectors. Premerger notifications relating to non-bank mergers in the financial sector are filed pursuant to the Hart-Scott-Rodino Act2 and are analyzed under the Guidelines.
This submission provides an overview of the practices of the Antitrust Division of the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) (together, “the Agencies”) with regard to transparency and procedural fairness. Part I discusses transparency with respect to substantive standards and agency policies and procedures. Part II discusses open and frequent dialogue with the parties, and Part III addresses the closely related issue of informing parties of the allegations against them in a timely manner. Parts IV and V describe the opportunities that parties are given to respond to agency concerns and to be heard prior to an adverse decision. Part VI addresses the length of antitrust investigations, and Part VII summarizes the Agencies’ practice with regard to the publication of decisions.