SEC and Justice Dept Antitrust Division Sign Historic Agreement

On June 22, 2020, the Securities and Exchange Commission and the Antitrust Division of the Department of Justice signed an inter-agency MOU for enhancing competition in the securities industry. Assistant Attorney General Makan Delrahim of the Antitrust Division and the SEC Chairman Jay Clayton executed the historic Memorandum of Understanding.

SEC Chairman Jay Clayton said “By formalizing the exchange of knowledge between our agencies, we aim to foster even greater collaboration and cooperation to ensure that we maintain the efficient and competitive markets that American investors rely on”. Assistant Attorney General Delrahim remarked “This MOU institutionalizes a strong working relationship between our two agencies”.

Key provisions of the Memorandum of Understanding

  • The agencies will confer at least twice annually while maintaining legal and confidentiality restrictions to:
    • Discuss and Review law enforcement and regulatory matters to increase competition in the securities’ industry
    • Foster co-operation and communication between the agencies to allow them to effectively manage their legal responsibilities
    • Help carry out the unrestricted flow of information between attorneys, economists, and technical experts, each agency shall designate a primary contact person.
  • The agencies will exchange information including the Hart-Scott-Rodino Act, 15 USC. § 18a, the Antitrust Civil Process Act, 15 USC. §§ 1311-14, and Rule 6(e) of the Federal Rules of Criminal Procedure while maintaining legal and confidential restrictions. Any information that is shared may include legal, economic, and technical assistance.
  • The agencies will be liable to establish and maintain administrative, technical, and physical safeguards to protect the confidentiality and security of nonpublic information.
  • The agencies may use the shared nonpublic information for:
    • Enforcement, Investigations, and Proceedings
    • Making disclosures to respond to Congressional inquiries
  • The agencies will not publicly use the information without prior notification and approval of the providing agency’s staff. In case of unauthorized disclosure of nonpublic information, the receiving agency must promptly inform the providing agency.
  • Each agency will process the Freedom of Information Act requests pursuant to applicable regulations.
  • The MOU can be amended by an agreement between the agencies
  • The MOU may be rescinded by either of the involved agencies through written notification to the other agency, 30 days before the date, the notifying agency wishes the rescission to become active.

Click here to read the guidelines published by the SEC.

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