On June 22, 2020 the Department of Justice Antitrust Division (Antitrust Division) and the Securities and Exchange Commission (SEC) announced that they had signed an interagency Memorandum of Understanding (MOU) to allow for more cooperation and communication between the two agencies.
Although these agencies have worked together in the past, this is the first time the Antitrust Division and the SEC have entered into a formal agreement. The agencies hope that this agreement will improve competition in the securities industry. As SEC Chairman Jay Clayton explained, “As competition is embedded in our securities laws, there are many policy areas where the missions of the SEC and DOJ’s Antitrust Division align, but where our respective areas of expertise differ. 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.”
The MOU provides for regular discussions and meetings between the two agencies to review law enforcement and regulatory matters. It also allows for information sharing to assist with oversight and enforcement. Of course, any information exchange under the MOU would be subject to the restrictions under Rule 6(e), which generally prohibits the sharing of grand jury information with personnel outside the Department of Justice.
This area of enforcement is not new for the Antitrust Division. In the past, the Antitrust Division has prosecuted cases regarding manipulation relating to the foreign exchange market and LIBOR. With the announcement of this MOU, we can expect to see even more antitrust enforcement in the securities and financial services industries. We are also likely to see parallel enforcement actions between the two agencies, and more informal witness interviews in place of (or in addition to) grand jury testimony, in order to facilitate increased information-sharing between the Antitrust Division and the SEC contemplated under the MOU.