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Ephemeral and Encrypted Messaging: DOJ Expectations, Compliance Risks, and Best Practices

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Megan Gerking, Joe Folio, Haydn Forrest, and Adrienne Irmer published an article in CPI Antitrust Chronicle that explores The...

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Megan Gerking, Joe Folio, Haydn Forrest, and Adrienne Irmer published an article in CPI Antitrust Chronicle that explores The Department of Justice's expectations for preservation and accessibility of communications on third-party and ephemeral messaging tools, as set forth in various speeches, policy memos, and guidance.The authors identify key compliance risks associated with third-party communication platforms and outline practical considerations and best practices for companies seeking to align their policies with regulatory expectations.Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt1277fa8d4186c8a3/68644607bf423e6dc7dd7b8f/250630-ephemeral-and-encrypted-messaging-doj.pdf" target="_blank">full article</a>.

Ephemeral and Encrypted Messaging: DOJ Expectations, Compliance Risks, and Best Practices

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Megan Gerking is a partner in Morrison Foerster’s Global Antitrust Law practice, specializing in government-facing antitrust matters. Megan represents companies in criminal and civil conduct investigations before the U.S. Department of Justice (DOJ) Antitrust Division, Federal Trade Commission (FTC), and state enforcers and in all phases of the merger review process before U.S. and foreign competition authorities.Megan, a former trial attorney with the DOJ’s Antitrust Division, is an experienced antitrust attorney focused on complex antitrust law matters, including government investigations, strategic transactions, and civil litigation. She regularly counsels clients on antitrust issues arising from industry consortiums, trade association activities, and other collaborations. While serving in the Antitrust Division, Megan investigated and prosecuted federal antitrust violations and international cartel cases. She leverages her DOJ experience when reviewing, developing, and implementing clients’ antitrust compliance programs and routinely delivers antitrust compliance training for employees.As part of Megan’s merger practice, she regularly helps clients in all aspects of merger review, including developing strategy for structuring transactions, assessing and complying with obligations under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR Act”), and securing clearance from antitrust enforcers in the United States and abroad. Megan has represented third parties in agency reviews of deals, including at trial.Megan has experience representing clients across a broad range of industries, including media, telecom, technology and software, financial services, consumer products, aviation, higher education, manufacturing, agriculture, and life sciences. While in the Antitrust Division, Megan prosecuted the first individual extradited to the United States on an antitrust charge. For her work investigating and prosecuting international price fixing, bid rigging, and market-allocation conspiracies by automotive parts suppliers, Megan earned the Assistant Attorney General’s Award for Distinguished Service. Megan was also awarded the DOJ’s Outstanding Mentor Award by the Attorney General. Further, she was recognized this past year in Bloomberg Law’s 40 Under 40 and as a finalist for The American Lawyer’s 2022 Young Lawyer of the Year. Additionally, Megan has served as a Non-Governmental Advisor to the International Competition Network (ICN) and spoke at the ICN Cartel Workshop in Lisbon, Portugal, in November 2022. Megan is also a member of our global Environmental, Social, and Governance (ESG) steering committee.Megan is currently an editor of ABA magazine The Antitrust Source. Megan received her J.D., cum laude, from Georgetown University Law Center, where she served on the editorial board of The Tax Lawyer. She received her B.A. in economics and political science from the University of Michigan.Before attending law school, Megan worked in the DOJ’s Office of Public Affairs, assisting the Assistant Attorney General of the Antitrust Division in all media matters and serving as a spokesperson for national media. She also worked as a paralegal for the Antitrust Division, supporting trial attorneys investigating and prosecuting corporations and individuals for violations of criminal antitrust laws.<h4>Representative Experience</h4><h5>Criminal and Civil Antitrust Investigations</h5><ul><li>Obtained non-prosecution protection for two healthcare companies she represented in separate DOJ Antitrust Division criminal investigations.</li><li>Represented an energy company in a criminal investigation.</li><li>Obtained a non-prosecution agreement for a senior executive in a criminal investigation into market allocation and bid rigging of generic drugs by the DOJ.</li><li>Regularly advises senior executives on DOJ antitrust criminal investigations involving allegations of price fixing, market and customer allocation, and bid rigging and obtained non-prosecution protection for several individuals.</li><li>Assisted a technology company in an FTC monopolization investigation.</li><li>Represented a private equity fund in a state AG investigation.</li><li>Counseled a senior executive in an international criminal cartel investigation.</li><li>Obtained a non-prosecution agreement for a senior executive in a criminal investigation into conduct related to the hiring of employees.</li></ul><h5>Antitrust Merger Review</h5><ul><li>ShowingTime. Navigated ShowingTime Inc., a leading real estate showing management and market stats technology provider, through an extended review by the Federal Trade Commission of its $500 million vertical acquisition by Zillow Group. </li><li>Unity Technologies Corp. Obtained merger clearances for Unity in connection with an asset carve-out acquisition from Weta Digital for certain assets, including its audiovisual effects development and management software tools, for a purchase price of $1.625 billion. </li><li>Grant Thornton. Advised and obtained merger clearances for Grant Thornton LLP in connection with the sale of its Public Sector Advisory practice to Guidehouse.</li><li>Divvy. Represented Divvy, a leader in spend management, in its $2.5 billion stock and cash sale to Bill.com.</li><li>NTT LTD. Represented NTT, a leading IT infrastructure and services company, in its $330 million cash sale of WhiteHat Security to Synopsys, Inc.</li><li>Palo Alto Networks. Advised Palo Alto Networks on its agreement to acquire Cider Security, a pioneer in application security and software supply chain security.</li><li>Continental Building Products. Represented Continental Building Products, a North American leader in wallboard and joint compound materials, in negotiations to secure antitrust approvals for its sale to Saint-Gobain. The transaction cleared without a “second request” investigation.</li><li>The Walt Disney Company. Assisted The Walt Disney Co. in its $71 billion acquisition of certain businesses from 21st Century Fox.</li><li>Bombardier. Represented Canadian aircraft manufacturer Bombardier in connection with the worldwide antitrust clearance of its sale of a controlling interest in the “C Series” line of commercial passenger jets to Airbus. The transaction cleared without any second-phase reviews.</li><li>Advised third parties on civil investigative demand (CID) responses, including Nouryon, a global specialty chemical leader, as a third-party witness in an FTC litigation challenge of a transaction between Evonik and PeroxyChem.</li><li>Counseled corporate clients on antitrust issues in complex transactions, including collaborations, joint ventures, acquisitions, and mergers.</li></ul><h5>Antitrust Litigation</h5><ul><li>Glenmark Pharmaceuticals, Inc. Representing Glenmark in a federal antitrust multidistrict litigation alleging price fixing and market allocation of generic drugs by manufacturers of generic drugs.</li><li>Nexstar Media Group. Representing Nexstar, America’s largest local television and media company, in federal antitrust litigation alleging price fixing in television advertising.</li><li>Represented a leading international financial institution in multiple, sprawling class action lawsuits alleging a global conspiracy by some of the world’s largest banks to manipulate the interbank offer rate (IBOR) benchmark for multiple currencies.</li></ul>

Megan E. Gerking

Partner

Joseph Folio is a trial lawyer and partner in Morrison Foerster’s Global Antitrust Law, Congressional Investigations (co-chair), Crisis Management, and Privacy + Data Security Groups, with more than a dozen years of experience leading complex government investigations and high-profile litigation.Joe has extensive experience in cartel investigations, congressional investigations, and complex civil litigation. Having served in all three branches of the federal government, and with his experience in both criminal and civil litigation, Joe is able to leverage his insider knowledge across a variety of enforcement perspectives to guide clients through difficult cases. He is also a member of our global ESG + Sustainability steering committee.As a prosecutor in the Antitrust Division of the U.S. Department of Justice (DOJ), he investigated companies and individuals involved in domestic and international antitrust cartels. Among them, he oversaw all aspects of the investigation into generic pharmaceuticals as the case’s chief of staff, including the handling of the parallel multidistrict litigation case brought by several state attorneys general and private plaintiffs. He also prosecuted and investigated cases in the international freight forwarding industry and cases involving bid rigging in state infrastructure projects.Prior to joining Morrison Foerster, Joe served as Chief Counsel for the Committee on Homeland Security & Governmental Affairs, the chief oversight committee of the U.S. Senate. In this position, he oversaw a variety of investigations, including the coordination of investigations with other Senate and House committees with overlapping jurisdictions. He also advised the committee on all policy issues falling within its broad jurisdiction, including cybersecurity, border security, domestic terrorism, election security, supply chain security (including 5G policy), and reforming the National Emergencies Act. Joe advised committee members on oversight of the Cybersecurity and Infrastructure Security Agency (CISA) within the Department of Homeland Security, legislation providing CISA with administrative subpoena authority, the creation of the National Cyber Director, and oversight of government and private efforts to protect against and respond to cyber breaches and ransomware attacks.While at the Federal Programs Branch of the DOJ’s Civil Division, Joe handled complex, high-profile litigation, focusing largely on national security matters, and his clients included the FBI; the Departments of Defense, Homeland Security, and State; and several members of the U.S. Intelligence Community. He also represented the Export-Import Bank against multiple administrative and constitutional challenges. Due to the cutting-edge nature of this litigation, he has experience navigating the inter-agency process when cases raise novel legal or policy issues that must be resolved at the highest levels.Joe received his B.A., magna cum laude, in philosophy and government from Georgetown University; M.A. with honors in national security studies from Georgetown University; and J.D., cum laude, from the George Mason University School of Law. After graduating from law school, Joe clerked for the Honorable Richard L. Voorhees in the U.S. District Court for the Western District of North Carolina.<h4>Representative Matters</h4>Antitrust<ul><li>Representing a major U.S. healthcare company in a criminal antitrust investigation of alleged “no-poach” conduct.</li><li>Representing a senior executive of an international company in a U.S. criminal cartel investigation.</li><li>Representing Nexstar Media Group in a putative class action alleging that certain media companies conspired to fix the prices of local television advertising.</li></ul>Congressional Investigations<ul><li>Representing Andy Karsner, a member of ExxonMobil’s board of directors, in response to a high-profile House Oversight and Reform Committee investigation regarding the role of the fossil fuel industry in addressing climate change, including preparing him to testify before the committee.</li><li>Representing a former government official who testified before the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol.</li><li>Representing a Fortune 100 company responding to inquiries from committees and members regarding its policies and practices.</li></ul>

Joseph Folio III

Haydn Forrest is an associate in the Litigation Department of Morrison Foerster’s Washington, D.C. office.Haydn advises clients on complex and high-stakes criminal and civil investigations. His practice focuses on investigations, criminal defense, and compliance matters involving antitrust, national security, and foreign malign influence. He regularly represents clients before state and federal regulators, as well as Congressional committees.Prior to law school, Haydn worked at the Federal Trade Commission as an honors paralegal. Haydn received his B.A. in international relations and political science from Tufts University.

Haydn Forrest

Associate

Antitrust Law