Fair Play: CID Compliance and Avoiding Privilege Gamesmanship Continue to Be Enforcement Priorities

In October 2020, the Division filed a civil action against Bain & Company to enforce its compliance with a civil investigative demand (CID) issued to Bain in connection with Visa’s proposed acquisition of Plaid. According to the complaint, Bain withheld thousands of relevant documents relating to consulting work it performed for Visa. Bain claimed the consulting project was subject to a blanket privilege because it was conducted at the direction of Visa’s outside counsel. The Division alleged, however, that the requested materials were simply business strategy documents not entitled to privilege.

This enforcement action exemplifies the Division’s ongoing efforts to enforce CID compliance and ensure companies—both parties and third parties—do not inappropriately withhold documents using unfounded privilege claims. In 2018, the Division updated its model timing agreement, including provisions asking merging parties to precisely designate documents as privileged in order to avoid longer review. And just last year the Division rejected a certification of second request compliance in a significant merger investigation because of the parties’ inadequate privilege logs.

The Division respects the attorney-client privilege and the work product doctrine and the need for a careful review process to protect these materials. But privilege gamesmanship—and overuse of privilege to shield relevant documents from production—will not be tolerated. The recent enforcement action against Bain highlights the Division’s careful scrutiny of privilege claims and its commitment to ensuring companies honor their obligations under the CID statute, 15 U.S.C. § 1311 et seq. (1994).