Information Sharing Guidelines

Summary

This template consists of sample guidelines that counsel might consider for distribution to employees at their client involved in due diligence for a potential transaction. The purpose of these guidelines is to instruct employees on best practices so that the parties' interactions—particularly exchanges of information—do not constitute an unlawful agreement in restraint of trade under Section 1 of the Sherman Act. As a matter of best practice, the audience for such guidelines should include all employees involved in due diligence or that otherwise might be in direct contact with the other party prior to signing of the transaction agreement. The template below provides sample practical guidance and drafting notes to consider when preparing your own guidelines. These guidelines do not cover every potential antitrust issue related to the exchange of information during due diligence for a merger or acquisition. It is therefore very important to closely consider whether there might be any other antitrust issues specific to your transaction. It is also important to consider that, in addition to antitrust restrictions on the exchange of information between the parties to a potential merger or acquisition, there also may be general commercial-related restrictions on exchanging certain types of information. After the execution of a transaction agreement, information sharing concerns will continue to exist, as well as additional antitrust issues related to the integration planning process. For guidelines related to that phase of the merger or acquisition process, see Integration Planning: Antitrust Considerations. For further guidance on antitrust issues specific to the due diligence process, see Due Diligence: Antitrust Issues.