Update on U.S. Merger Review Procedures During COVID-19
The Federal Trade Commission's Premerger Notification Office (PNO) announced that, effective Monday, March 30, the PNO and Department of Justice Antitrust Division (DOJ) will resume the practice of granting early termination of the waiting period (typically 30 days) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), when both agencies have determined that no enforcement action will be taken during the waiting period.
Previously, the PNO announced that it would adopt new e-filing procedures for HSR Act filings in response to the developing COVID-19 pandemic, and that it would not grant early termination of the HSR Act waiting period while the new e-filing system was in place. DWT's previous analysis on the PNO and DOJ’s response to the COVID-19 situation can be found here.
While the PNO credited its ability to return to processing requests for early termination to the "success of the temporary e-filing program to date," it warned that early termination will, for the duration of the COVID-19 pandemic, "be available on a more limited basis than has historically been the case," and will "be granted in fewer cases, and more slowly, than under normal circumstances." Further, the PNO warned that its staff is "at capacity," and that "[p]arties and their counsel should not call the PNO or the litigation shops to advocate for early termination."
The PNO's recent announcement did not change DOJ's earlier announcement that it was requesting from merging parties an additional 30 days to timing agreements to complete its review of transactions being investigated, or the PNO's prior announcement that it, too, may ask for modifications of either statutory or previously agreed-to timing.
DWT's antitrust lawyers regularly advise clients on the HSR Act process, as well as any related government investigations, and are available to provide guidance to merging parties on any concerns relating to the new HSR Act filing processes or unique merger review challenges posed by COVID-19.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.