The U.S. Federal Trade Commission (FTC) announced Friday, March 27, that, effective Monday, March 30, it and the Antitrust Division of the Department of Justice (DOJ) would lift the suspension of early termination grants under the Hart-Scott-Rodino (HSR) Act that the agencies had announced on March 13 in response to the COVID-19 outbreak. According to the FTC’s announcement, the lifting of the suspension is subject to several caveats:
- Given current operating constraints at both agencies, early termination of the initial HSR waiting period still will not be granted as routinely, or as quickly, as before the COVID-19 outbreak. (Normally, it is granted in approximately 75 percent-80 percent of the transactions in which it is requested, typically within 10-20 days after HSR filings are made.)
- FTC and DOJ staffs will resolve any doubts against granting early termination.
- Parties and their counsel should not contact agency staff to advocate for early termination in deals where it has been requested.
- The decision to resume early termination grants is subject to further modification or rescission as circumstances warrant.
Even with these caveats, this development indicates that the FTC and DOJ are adapting successfully to online processing and review of HSR filings by staffers working from home. Overall, however, one still should anticipate that it will take longer than usual to obtain HSR clearance while the agencies’ temporary procedures remain in place, especially (though not exclusively) in transactions that present substantive antitrust issues.
March 20, 2020
As one would expect, the COVID-19 outbreak is leading rapidly to temporary changes in merger control processes and timelines throughout the world, as competition authorities attempt to adjust to current conditions and to anticipate further developments. At this stage, the situation should not be assumed to be stable in any jurisdiction, but we have attempted to summarize below the current state of affairs in certain jurisdictions with particularly active merger control regimes.
We are monitoring jurisdictions where the competition authorities have not yet announced any process or timing changes resulting from the COVID-19 outbreak.
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