On March 13, 2020, the Federal Trade Commission’s Premerger Notification Office (PNO) announced new procedures for how it will review transactions reportable under the Hart-Scott Rodino Antitrust Improvements Act of 1976 (HSR Act) due to the developing COVID-19 pandemic.
PNO Now Only Accepting Electronic Notification Filings; Will Not Grant Early Termination
Effective Tuesday, March 17, 2020, the PNO suspended all hard copy and DVD filings and is now only accepting HSR Act premerger notification filings online via a secure FTP site. While the U.S. Department of Justice (DOJ) Antitrust Division announced that it will also accept electronic filings under the HSR Act, it has yet to issue any specific procedures or guidelines.
Importantly, the PNO will not grant early termination of the HSR Act waiting period (typically 30 days) for any transaction while the new e-filing system is in place. Therefore, parties to transactions subject to the HSR Act requirements must expect to wait at least the full 30 days (or 15 days for some transactions) before closing on their transaction.
Delays to Merger Investigations
Parties to a transaction likely to raise substantive antitrust issues should also anticipate that merger investigations may take longer to complete. On March 16, 2020, the PNO stated that it is conducting a “matter-by-matter review of [its] investigations and litigations to consider appropriate modifications of statutory or agreed-to timing.”
Further, the DOJ issued a press release on March 17, 2020, stating that it is “requesting from merging parties an additional 30 days to timing agreements to complete its review of transactions after the parties have complied with document requests.”
DWT’s antitrust lawyers are monitoring any developments and are available to provide guidance to those considering proposed transactions not only on complying with the new filing procedures, but also addressing the merger review challenges and possible delays 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.