DealLawyers.com Blog

Here’s an excerpt from this Hogan Lovells memo:

In anticipation of the shutdown by the U.S. federal government, which began early this morning, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) released contingency plans that detail the impact on all aspects of the agencies’ operations, including their review of mergers and acquisitions.

The Bureau of Competition at the FTC will maintain a limited staff to accept and process new Hart-Scott-Rodino (HSR) filings. The agencies will then determine whether circumstances warrant further investigation of any reported transaction during the shutdown.

Although the agencies can technically challenge a merger outside of the initial 30-day statutory review period, the FTC concedes that “the nature of the available relief changes dramatically once a merger or acquisition is consummated.” As a result, the FTC intends to initiate or continue investigations where it believes that “a failure…to challenge the transaction before it is consummated will result in a substantial impairment of the government’s ability to secure relief at a later time.”

For matters currently in litigation, the FTC will “request suspensions of dates for trials, hearings and filings, or similar relief to preserve the government’s claim,” and will maintain limited staff to litigate matters where it cannot obtain deadline extensions. All non-merger investigations currently underway at the Bureau of Competition will be suspended during the shutdown.

The Antitrust Division at DOJ will similarly limit staffing to those employees necessary to launch or continue merger investigations or litigation where it cannot obtain a continuance or extension of a statutory deadline and where DOJ “leadership determines that allowing a proposed merger to go forward without objection would pose a reasonable likelihood of peril” to the government’s interests.